The Genius of Republican Liberty

The Genius of Republican Liberty: James Madison’s Theory of Representation By Jordan M. Bradley Claremont Graduate University 2017 © Jordan M. Bradley, 2017 All rights reserved. APPROVAL OF THE DISSERTATION COMMITTEE This dissertation has been duly read, reviewed, and critiqued by the Committee listed below, which hereby approves the manuscript of Jordan M. Bradley as fulfilling the scope and quality requirements for meriting the degree of Doctor of Philosophy in Political Science. Dr. Michael M. Uhlmann, Chair Department of Politics and Policy, Claremont Graduate University Professor of Government, School of Politics and Economics Dr. Ralph A. Rossum, Committee Member Claremont McKenna College, Government Department Salvatori Professor of American Constitutionalism Dr. Charles R. Kesler, Committee Member Claremont McKenna College, Government Department Dengler-Dykema Distinguished Professor of Government Abstract The Genius of Republican Liberty: James Madison’s Theory of Representation Jordan M. Bradley Claremont Graduate University, 2017 This dissertation examines the representational theory of James Madison – first in the context of the literature on representation more generally, then in the context of Madison’s larger project of securing a free and stable republican government in a democratic society, and lastly in the context of the Supreme Court’s representational jurisprudence. This examination begins by challenging Hanna Pitkin’s long-standing dismissal of Hobbes’s theory of representation and the methodology by which she comes to define the ends of political representation. I contend that the ends of representation must be connected with the ends of the regime in order to determine whether a regime is, in the words of Pitkin, providing substantive representation. I then situate my reading of Madison’s works on representation within the larger, and often conflicting, fields of literature on Madison and his political thought before demonstrating that Madison’s understanding of representation both owes a significant intellectual debt to the French Enlightenment – a debt that has only recently begun to enter the awareness of modern Madisonian scholarship through the exceptional work of Colleen Sheehan – and offers a unique contribution to political theory with his synthesis of French and English political thought to produce a theory of representation that can secure liberty and justice in a levelled society. Lastly, I examine the historical development of two competing, and contradictory strands of representational jurisprudence, discuss the social impact of the Court’s understanding of the purpose of representation, and indicate possible solutions to the conflict between these two lines of jurisprudence derived from Madison’s theory of representation. Dedication To Raelene My past, present, and future, without whom, none of this would have been possible. Acknowledgments Nowhere do I feel the metaphorical inadequacy of my pen more than in attempting to express my gratitude to my friends, family, and colleagues who have made my doctoral studies a success. I have been blessed with phenomenal teachers over the course my studies, not just experts in their fields, but great men and women who live exemplary lives. Every time I sit down to write, I hear Scott Yenor say, “Be lucid and concise.” It is an ideal I have not yet attained, but I am grateful to my undergraduate mentor, who first challenged me to think more deeply about justice, for his guidance. I will be forever grateful for the kindness of Jean Schroedel, for the timely advice and pearls of wisdom of Ralph Rossum, and the patience and insight of Charles Kessler. Most of all, I am grateful for the wisdom, wit, and generosity shared by Michael Uhlmann, whether in a quick phone call or a long drive to the airport, I have learned so much from him and have been made so much better by his magnanimity. I have also been blessed with great friends from my time at CGU, and I owe so many debts of gratitude that I cannot possibly express them to everyone here. I do want to especially thank Guy Burnett, Alex Hindman, and Murray Bessette, for their advice and encouragement over the years; your friendship is an inestimable treasure. Lastly, I want to thank my family, especially my wife Raelene, for all their support over the years. Over the course of a decade, Raelene and I have earned two Masters degrees, now a Ph.D., have been blessed with four beautiful children, and built a business to try and pay for it all. She is a woman of innumerable talents and exceptional virtue (especially patience!); I am eternally grateful for her. vi Table of Contents Acknowledgments vi Introduction 1 Chapter 1: The Origins of Representation 11 Chapter 2: The Institutions of Representation 67 Chapter 3: The Processes of Representation 134 Chapter 4: The Jurisprudences of Representation 189 Works Cited 242 Cases Cited 251 vii Introduction I first came across the existence of two competing, and conflicting, strands of representational jurisprudence in Lepak v. City of Irving, a reapportionment case involving the redistricting of the Irving City Council that began in 2007 and worked its way through the lower Federal Courts before the Supreme Court finally denied of a writ of certiorari in 2013.1 The case, in most respects, is unexceptional: it was poorly reasoned and poorly argued and, like every case before it which sought to make the Court choose one line of representational jurisprudence at the expense of the other, the Supreme Court simply ignored it. The central conflict of the case was over which unit of measure should be used to determine that the members of each district were being fairly represented. The use of one measure, total Citizen Voting Age Population (CVAP), would require districts of equal voters, which in Irving, with a large population of noncitizens, would create districts with significant disparities in total population. The use of the second measure, total population, to equalize the districts would have the opposite effect, creating districts with significant disparities in the CVAP. Notwithstanding the practical disparities, both parties could draw on different case law to explain why their preferred method of apportionment was not only fair and equal, but constitutional. The 2016 case of Evenwel v. Abbott, where the Court was directly faced with the question of which of these competing methods of counting population was constitutional for the purposes of redistricting, provided no solution.2 The Court’s unanimous 8-0 decision merely affirmed that local political districts could 1 The first suit was brought before the court in 2007 in Benavidez v. City of Irving, Case No. 11-10194; 638 F.Supp.2d. 709 (2009). Lepak’s final designation is Lepak v. City of Irving, Texas, 133 S. Ct. 1725 (2013). 2 Evenwel v. Abbott, 578 US __ (2016) 1 choose one unit of measure or the other and offered no clarification on the inherent conflict between the two competing strands of representational jurisprudence. What the Lepak case did do well, at least in the subtext of the conflict between the units of measure, particularly at the district court level, was raise the question of which electoral mechanisms best fulfill the requirements of the Court’s representational jurisprudence. It turns out that the ideal electoral district, where the priorities of both strands of the Court’s representational jurisprudence are fulfilled – every vote has an equal weight and minorities are able to elect candidates of their own choosing – is almost the opposite of the predominate electoral mechanism of American politics, the single member district. Though the Court has explicitly denied charges, even from fellow members of the Court, that its reasoning tends toward proportional representation, the conflict remains and efforts to change the electoral map, if not the electoral mechanisms themselves, seem to intensify with each passing electoral cycle. The argument that follows grew out of my effort to understand the root cause of the conflict in the Court’s representational jurisprudence, and what began as a study to understand why the Court felt two conflicting lines of representational jurisprudence were necessary grew into a larger project concerned with the nature and purpose of representation itself that can justly be called eclectic. The simplest answer to why the Court developed two lines of representational jurisprudence is that it was trying to secure just outcomes. There is an undeniable connection between representation and justice, most often seen in conceptualizing representation as a means of wielding political power to secure desirable outcomes. But there is a deeper relationship, or at least a more comprehensive meaning of both representation and justice, which necessitates a shift to political theory. This longer answer begins in Book I of Plato’s Republic where we are led to ask “what is justice?” and through the character of Thrasymachus Plato makes the case that 2 justice is the rule of the stronger (and that can mean the more numerous, or the more noble, or the more wealthy, etc.) in contrast to Socrates’s assertions that justice is not a claim to rule but rather something that should make men better. The Court’s understanding of justice falls firmly in this Thrasymachean mold. When the Court says “one person, one vote,” it also says justice is the rule of the majority. But this reasoning comes under significant pressure when the majority’s right to rule threatens minority rights. The Court’s second line of representational jurisprudence seeks to correct this by carving out a portion of the claim to rule for significantly large and geographically compact minorities, and in doing so answers the question “what is justice?” by asking a different question, “who gets to rule?” The equation of the right to rule with the definition of justice appears stark here, and has a much stronger authoritarian feel than I mean to give to the Court’s reasoning, but it serves, as a quick highlight and not a nuanced account, to reveal a more significant problem in the Court’s representational jurisprudence than simply being self-contradictory: how are minority rights protected in the Court’s understanding of representation? Or more broadly, what limits exist on majoritarian rule in the Court’s representational theory, and how are these limits judicially cognizable? Within the context of the Court’s reasoning, representation is incapable of providing any limits or protecting any rights – the Court must police the boundaries. This is a wildly disappointing answer, and one that is not due simply to the Court entering the “political thicket” of reapportionment, but also relying on narrow conceptions of representation once it began redistricting, first equating voting with the act of being represented, and second conceptualizing representation as a reductive, electoral mechanism.3 3 See Colegrove v. Green, 328 U.S. 549 (1946) 3 To understand the alternative, not just in a sense of what was lost in the Court’s development of its representational jurisprudence (and before, in the malapportionment that precipitated the apportionment revolution), but also what options are available to remedy the ever-present conflict between the two strands of jurisprudence, I turned to James Madison. The putative father of the Constitution, and, more importantly, the founder who thought most deeply about the relationship between representation and justice, Madison developed a theory of representation that, rightly understood and properly implemented, offers the framework to attain a higher sense of justice – not only allowing majorities to rule but also simultaneously protecting rights by inclining the people toward reason over passion. For Madison, representation and its relationship to justice are not found in the mere selection of a representative, but in a more expansive cyclical process that begins with each individual’s opinions and runs through the communicative channels of social and political life while simultaneously subjecting the exercise of political power to institutional processes which favor the slower developing and more rational public opinion over the more immediate and passionate popular opinion. This expansive account of representation is conspicuously absent from the literature on representation, but why? And, if Madison’s theory of representation is not present in the representational literature, then what is? Ultimately, what do we know about representation, and how do we know it? Having deconstructed the question of representation facing the Court to this most basic, fundamental level, we can now begin to work through the relevant questions and understand the purpose and importance of representation in the American regime, and what options the Court has in reconciling its two competing strands of representational jurisprudence. In my efforts to answer these relevant questions, I have made my best efforts to understand Madison as he understood himself, an exercise which has contributed significantly to 4 the eclectic, transdisciplinary approach to the literature which you will find below. Modern scholarship on political science has developed a semi-rigid structure of specialties absent in Madison’s understanding of “the science of politics.” As modern students of political science, we differentiate between behavioral and institutional approaches to the study of American government; we distinguish political theory from law, and political development from history. To understand Madison as he understood himself requires working through the political questions he was trying to answer, and the source materials that he worked through to formulate not only his theory of representation, but his understanding of the ends of republican government. Thus, adding the complexity of first trying to understand Madison as he understood himself, and second situating that understanding in a highly striated modern political science context of representational thought, American government, and law, explains why an inquiry which begins in the 5th Circuit Appellate Court will spend significant portions of its time in Enlightenment France before coming back to the modern Court. As I said, eclectic, but necessary and, I hope, worthwhile. Chapter One, “The Origins of Representation,” begins with the question “what do we know about representation and how do we know it,” and examines the cornerstone of modern representational theory, Hanna Pitkin’s The Concept of Representation.4 Pitkin uses what I call the philological method to derive the meaning of representation from the meaning of the words we use to describe the actions of representation. Pitkin uses this methodology to divide representation into four categories: formalistic, symbolic, descriptive, and analogous or substantive action. However, these categories are derived from the relationship between the 4 Hanna Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967). 5 representative and the represented, without concern for the relationship between representation and the ends of the regime, so that when Pitkin begins defining good representation, rather than representation simply, she is left to rely on the expectations of the represented, but cannot explain why such expectations make representation good. In response, I argue that a theory of representation must account for the ends of the regime. Representation is a necessary mechanism for good government, but it is not sufficient in its own right, so the ends of the regime must be known, and the mechanisms by which representation contributes to the attainment of those ends must be clearly delineated. This understanding of representation allows me to re-categorize the existing literature on representation into three groups: accidental, Historical, and essential. I use accidental here in the Aristotelian sense, that it is something completely unnecessary to the character of the regime, and in its most common form, representation here is understood as a mechanism whereby you can reduce a large population into a manageable governing body. The Historical school argues that representation has been an organic development within the regime and has enjoyed a largely continuous and uninterrupted development since medieval times. While not all accounts in this school rely on the Historicist assumptions first promulgated by Hegel in his Philosophy of History, Gordon Wood’s work being the notable exception, the main purpose of this type of account is to connect the institution of representation with a larger argument on the teleological development of human nature and is thus the preferred account of Progressive and Existential thinkers. The last school, the essential accounts, is the focus of the remainder of the inquiry and looks primarily at the works of Locke and Hobbes. These accounts, like that of Madison’s in the chapters that follow, are largely absent from the literature (with the exception of Pitkin’s treatment of Hobbes, whom she must dismiss in order to begin her own account) because they 6 argue that what is being represented is defined by the ends and nature of the regime. Without connecting representation with the regime, the question of representation’s relationship to justice, and thus representation’s role in securing good government, remain unmoored. With this connection reestablished, we can now consider Madison’s theory of representation and its relationship to justice and the goodness of the regime. Chapter two, “The Institutions of Representation,” begins with the scholarly treatment of Madison’s political thought in general, which has varied significantly over time. In examining why these variations have occured, I also try to remove some of the patina of previous scholarship that colors significant portions of our modern image of Madison so we can try to see Madison’s thought as he understood it himself. This restoration requires a focus primarily on Madison’s original writings, his essay “Vices of the Political System,” the Virginia Plan, the Federalist Papers, Notes on Government, and the National Gazette “Party Press” Essays. From these writings we see that Madison equates just government with majority government, at the same time that he believes that a majority is not inherently just. Madison’s theory of representation includes two types of remedies to this paradox – the first is found institutionally, the second procedurally. In his “Vices” essay, Madison clearly identifies the people as the leading problem in the failing government under the Articles of Convention, just as he later identifies the interests of the people as the causes of faction in Federalist 10. Madison believes human nature is fixed, therefore government cannot change human nature, but if properly structured, the institutions of the regime can restructure the forces which influence the people, limit the forces which are inclined toward bad decision making, and prejudice the people toward processes which tend toward good decision making. Greg Weiner’s work on the institutional timing of the 7 Constitution in Madison’s Metronome provides a strong foundation for understanding Madison’s use of the institutional structure of American government to take the same people who were failing to rule themselves well under the Articles of Confederation and incline them toward decision-making based more in reason than passion.5 Weiner, however, relies too much on the idea of time alone to explain Madison’s representative mechanisms, and in exploring why, I show that Madison makes a number of arguments on the nature and development of public opinion which have only recently begun to enter the literature, predominately through the work of Colleen Sheehan.6 In addition to the institutional aspects of representation, Madison also makes an essential distinction between popular and public opinion. His own writings are not precise on the use of these terms, but the idea is, and these precise terms are drawn from the literature of the French Enlightenment, works with which Madison was intimately familiar and often received directly from France by way of his friendship with Thomas Jefferson. These findings demonstrate that the literature on Madison’s thought fails to account first for the French influences in Madison’s political thought and second for when those French influences became apparent in his solutions to the problems facing republican government in America. Chapter three, “The Processes of Representation,” explores how representation, when properly structured, reaches into the daily process of idea formation and dissemination in everyday republican life. Again, this does not change human nature, but it inclines the forces 5 Greg Weiner, Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics (Lawrence: University of Kansas Press, 2012). 6 Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government (New York: Cambridge, 2009); Colleen A. Sheehan, The Mind of James Madison: The Legacy of Classical Republicanism (New York: Cambridge, 2015). 8 which could create faction toward positive outcomes instead. This exploration of the development of public opinion requires that we turn away from the typical English and Scottish Enlightenment sources which are credited as the seminal texts of Madison’s thought, and focus instead on the then-emerging schools of French thought on the place of liberty in a democratic society and the distinction between popular and public opinion. Once we understand the questions with which the French were struggling, we can see that Madison's theory of representation owes a great deal to French thought at the same time that it comes to unique conclusions decades before French thinkers develop their own answers to the same questions. This shows Madison to not only be a more comprehensive thinker than he is sometimes given credit for, but it shows him to be a more consistent thinker than the literature often gives him credit for, especially when compared to Alexander Hamilton. Madison’s exploration of French thought also answers the challenges raised in the literature, which only looks at English history and theory, about why the people need to be represented so many different times. Representation, Madison argues, is not about re-presenting the people, but creating the channels and processes which are more conducive to the rule of reason over passion. Public opinion, not popular opinion, is the only opinion with a just claim majority government, and Madison's institutional and procedural framework seeks to make public opinion be just as often as possible. This is not a balancing act, but a creative one necessary to secure the competing ends of liberty and equality. Chapter four, “The Jurisprudences of Representation,” returns us to the modern Court and explores the development of the two competing strands of representational jurisprudence – the first running unchallenged from 1964 through 1980, and the second rising out of an undesirable outcome in City of Mobile, Alabama v. Bolden and the legislative response in the 1982 9 Voting Rights Act.7 The first seeks to maximize rule, the second seeks to maximize the reductionist and existential accounts which claim that a representative must look like the people they represent. This returns us too to Pitkin’s accounts of the varied forms of representation and we can more fully ask whether either of these conceptions of representation are capable of securing the ends of American government. On the practical side, the development of and ultimately the conflict between these two bodies of jurisprudence have changed the mores of the country. Madison’s theory of representation calls for a marketplace of ideas, an intellectual commerce that not only happens among elites, but also between citizens in their quotidian political and social interactions in the extended sphere. The homogenization of modern political and social life, the “big sort” as Bill Bishop appropriately calls it, and increasing partisanship in Congress, are, if not products of the Court’s representational reasoning, then significantly enhanced by it.8 As reformation efforts continue to gain political capital – most recently in efforts to limit partisan gerrymandering – we must be aware of the consequences of any changes to our representative mechanisms. The solution to the conflict is found in Madison’s thought, though a return to first principles here is not simple and, in light of the increasing homogenization of society – the collapsing of extending spheres, there are serious reservations about whether a return is even possible. Whatever the remedy may be, we will be well served in understanding how Madison’s theory of representation seeks to secure liberty, equality, and justice as the products of a properly structured system of representation. 7 City of Mobile, Alabama v. Bolden, 446 U.S. 55 (1980) Bill Bishop and Robert G. Cushing, The Big Sort: why the clustering of like-minded America is tearing us apart (New York: First Mariner Books, 2009). 8 10 The Origins of Representation The invocation of the genius of republican liberty strikes modern ears as normative praise. Our contemporary use of “genius” speaks to exceptional and innate abilities, qualities that make a genius inherently better than a non-genius. As such, to speak of the genius of republican liberty seems to praise the natural superiority of republicanism, or at least popular government, over other regimes. This is not, however, the meaning James Madison evokes as he highlights the demands of the genius of republican liberty in Federalist 37. Genius, as Madison meant it, is a distinctive, prevailing character or spirit.1 Genius is the soul, the motive force, of republicanism and, like any other soul, it can be unbalanced. Far from simply praising republican forms, Madison’s invocation of genius shows the breadth and scope of his political project.2 Throughout his writings, Madison identifies a number of conflicts between liberty, popular control, justice, security, and stability in the historical practice and theoretical expositions of republican government, but the enduring question at the center of his search for a stable and sustainable republican regime is how to simultaneously meet both the demands of liberty and the demands of a democratic society. 1 "genius, n. and adj.". OED Online. June 2015. Oxford University Press. http://www.oed.com.ccl.idm.oclc.org/view/Entry/77607?redirectedFrom=genius (last accessed March 18, 2016), See II.6.c; See also I.1.a II. (Character, ability, and related senses.) 6.c. With reference to a language, law, institution, etc.: prevailing character or spirit; general intent or meaning; characteristic method or procedure. I. (A supernatural being, and related senses). 1.a. With reference to classical pagan belief: the tutelary god or attendant spirit allotted to every person at birth to govern his or her fortunes and determine personal character, and finally to conduct him or her out of the world. Also: a guardian spirit similarly associated with a place, institution, thing, etc.; cf. genius loci n. 1. Now chiefly hist. 2 See Colleen Sheehan’s seminal work on recapturing the scope of Madison’s political project in James Madison and the Spirit of Republican Self- Government (New York: Cambridge University Press, 2009). 11 In Federalist Nos. 9 and 10, Hamilton and Madison, writing under the nom de plume Publius, identify five advancements in the science of politics over the understanding of the ancients that will allow for the success of popular republican government. Publius identifies the first four as “wholly new discoveries, or [ones that] have made their principle progress towards perfection in modern times” and then emphasizes the unquestionable novelty of the fifth: first, “[t]he regular distribution of power into distinct departments,” or separation of powers in modern terminology; second, “the introduction of legislative balances and checks,” today called bicameralism; third, “the institution of judges holding their offices during good behavior”; fourth, “the representation of the people in legislature by deputies of their own election; and fifth, “the ENLARGEMENT of the ORBIT within which such systems are to revolve.”3 This emphasis on the expansion and enlargement of the republican project, and the extended treatment of the separation of powers and bicameralism later in the Federalist Papers, have contributed to a significant neglect of the fourth advancement of modern political science – representation. Representation, in its simplest terms, is not a wholly new discovery. Thomas Hobbes was the first philosopher to include representation as an essential component of his political theory, but representation as explained in the Leviathan does not incorporate any sense of continuing popular control essential to any modern understanding of representative government. Other accounts of representation, like those of James Harrington’s The Commonwealth of Oceania, John Locke’s Second Treatise on Government, and Sir Edmund Burke’s Speech to the Electors of Bristol, capture some sense of continued popular control that accounts for 3 Alexander Hamilton, James Madison, and John Jay The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 2003), 67, emphasis in original. 12 a number of modern representative mechanisms.4 So what is it that inspires Publius’s claim that the American instantiation has something new to teach us about representation? What is the progress toward perfection that representation has made, and who discovered it? Most accounts that offer any attempt at answering these questions make two errors. The first error is an exaggerated emphasis on the English origins of representation. Some instance of the other advancements – separation of powers, bicameralism, and judicial tenure – can certainly be found in the English constitution, and they, or at least the idea of them, are praised by Montesquieu.5 The decidedly English origins of these advancements, coupled with the dominance – and almost exclusivity – of English thinkers cited as the source material for American representation, seem to offer sufficient evidence for the conclusion that, theoretically speaking, American representation is simply modified English representation. The second error is the confounding of the fifth advancement – enlarging the orbits – with the whole of the progression of the fourth advancement – representation – in an effort to explain what distinguishes American representation from its supposed English origins. The central assumption in this Anglo-centric account of representation is that America remains more or less English, just bigger and farther away. In considering representation as a remedial, derivative advancement – that is, representation is to be praised because, as a reductivist 4 I have omitted John Stuart Mill’s Considerations on Representative Government from this list of notable English thinkers on representation because it was published after The Federalist Papers. 5 According to Donald Lutz’s work, The Origins of American Constitutionalism, (Baton Rogue: Louisiana State University Press, 1988), Montesquieu was the most cited theorist during the revolutionary period leading up to the ratification of the Constitution, by both sides of the Federalist/Anti-Federalist divide. This does not mean, as is so often the case, that he was well understood by those who cited him. Madison expended a great deal of effort correcting such errant readings, especially in regards to the enlarged orbits. Of greater concern here however, is that Montesquieu plays a different role in the development of French political theory than is understood by most scholars, largely because of their focus on his praise of the English constitution and the subsequent use of his writings during the build up to the ratification of the Constitution. This French connection will be discussed in Chapter 3. 13 mechanism, it makes modern popular government possible by remedying the impossibility of democratic government in an extended territory with large populations – this looks like a compelling account. This post-hoc style account is, however, incomplete and inadequate. From the simple perspective of intellectual curiosity – why does Publius rank representation so highly among the achievements of modern political science – the answer offered is unsatisfying. From the perspective of intellectual rigor and political practice, the answer is wholly inadequate. This reductionist, mathematical line of reasoning has been pursued, almost to the extreme, by the United States Supreme Court since it entered the political thicket of reapportionment in the 1960s. From the early days of the reapportionment revolution, the courts rejected any expert testimony on representational theory or apportionment practice, making it a common practice to not allow such theoretical arguments, or a number of other forms of data essential to any argument other than the mathematical calculation of majority rule, as admissible proofs that could bear on fact-finding at the District Court level and beyond. WMCA v. Lomenzo was one of the so-called “Big Six” cases that the Supreme Court decided together in 1964 to ring in the most comprehensive changes of the reapportionment revolution.6 The case involved a challenge to the 1894 constitution of the State of New York which did not base representation solely on population. The constitution instead based its representational reasoning on “on accessibility of legislative representatives to the electors” and balancing political initiative between rural and urban interests by focusing on the county as an historic and “classic unit of governmental 6 WMCA v. Lomenzo, 377 U.S. 633 (1964) 14 organization and administration.”7 The District Court found this reasoning and historical grounding to not be “irrational” under the new guidelines set for by the Court in the Baker decision and allowed the apportionment to stand, but was soon overruled by the Supreme Court.8 The testimony of the only political scientist to make it around the representational theory ban highlights the ubiquity of this reductionist understanding of representation that drove the Court’s final decision against New York’s constitution. On cross examination, after answering a number of questions about the meaning of equal and equitable representation, the witness was asked if there were any other well-recognized theories of representation. Professor Ruth C. Silva of Pennsylvania State University responded: “Not that I know of. Historically there have been other theories. But I do not believe political science accepts other theories.”9 Representation is more than a substitution of one for many, a dogmatic, mathematical equality, or a utilitarian reduction of numbers to make popular government feasible among large populations. Federalist No. 9 is directed to the “enlightened friends of liberty,” not partisans of popular government – an institution, Publius laments with the reader, whose historical practice it is impossible to read “without feeling sensations of horror and disgust at the distractions with which they were continually agitated.”10 He continues: “[f]rom the disorders that disfigure the annuls of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society.”11 Publius highlights the importance 7 Robert G. Dixon, Democratic Representation: Reapportionment in Law and Politics (New York: Oxford University Press, 1968), 201-204. 8 Baker v. Carr, 369 U.S. 186 (1962) 9 Id., 204-5. 10 Federalist No. 9, 66. 11 Ibid. 15 of representation because, when rightly understood and properly practiced, it allows the enlightened friends of liberty to also be advocates and friends of popular government. The formation of this new friendship at the heart of Publius’s project brings us to the final challenge that representation overcomes - the achievement of the heretofore unprecedented goal of making a government that is popular, and free, and stable. Drawing from the dominant accounts of Aristotle and Montesquieu, stability and liberty rely on the proper mixing of a regime, with a particular focus on the aristocratic class. If the central assumption that America is England, just bigger and farther away, holds true, then the imposition of the British representational model on American society would be sufficient to those ends. However, the social structure in America is, and was, dramatically different from Britain – this was a significant portion of the grounds for the first partisan divide between the Federalists and the Republicans – and this distinct social character required a new theoretical question, the answer to which is essential to the success of the American experiment: how can liberty be maintained in a leveled society? No one of the founders, and perhaps no one since, understood this question, nor answered it, better than James Madison. This should not be a novel claim, but the predominant readings of Madison’s work, from both his friends and foes, have over the years alternately obscured and ignored Madison’s theory of representation and therefore fail to account for the breadth of Madison’s understanding of the necessities and requisites for republican success in a democratic age. The first step in restoring Madison’s theory is to understand what representation is and then we can begin to understand what it does. How is representation a distinct concept once it is separated from the expansion of popular government necessitated by enlarged orbits? This 16 inquiry raises a number of important, if seemingly insipid (and thus ignored or incompletely answered), questions: What is representation? What is being represented? Why, and to what end? Is representation inherently democratic? How does representation in America differ from representation simply? Why must this question be qualified, and does this qualification mean that American representation is better or worse than “standard” representation? How do you define standard representation, and can you define it without first defining good representation? How do you define good representation? This is a potentially overwhelming barrage of political sciency questions, but they drive at the essential starting point for understanding Madison on his own terms: what do we know about representation, and how do we know it? The only comprehensive effort to answer most of these questions is Hannah Pitkin’s The Concept of Representation.12 Pitkin’s stated goal is to find a single definition of representation that accounts for all the variations seen in practice – to find its essence and thereby understand what is universally true about representation. But her secondary goal, one that is not revealed until the end of her work, is to define good representation. The vast majority of the accounts Pitkin examines are incomplete; the authors she explores only came to the subject of representation tangentially, in connection with larger, disparate projects, with representation appearing as a necessary waypoint for a range of different goals. To bring some sense of unity to these tangential accounts of representation, Pitkin invites the reader to think of the concept [of representation] as a rather complicated, convoluted, three-dimensional structure in the middle of a dark enclosure. Political theorists give us, as it were, flash-bulb photographs of the structure taken from different angles. But each proceeds to treat his partial view as the complete structure. It is no wonder, then, that various photographs do not coincide, that the theorists’ extrapolations from these pictures are in conflict. Yet there is something there, in 12 Hanna Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967). 17 the middle of the dark, which all of them are photographing…What is necessary is to interpret each view by identifying its angle of vision, or (to speak less metaphorically) by identifying the context for which it is correct and exploring the assumptions and implications imposed by that context.13 This is an intriguing methodology – something like an intellectual time-lapse where, after we have seen the parts in motion, we will be able to remove any variations and movements which distract us from the hidden essence of representation. To aid in the processing of these metaphorical photographs, these apparently fragmentary accounts of representation, Pitkin presents four categories that have come to define the field of study: formalistic, symbolic, descriptive, and analogous or substantive action.14 Formalistic representation is concerned with the authority of the representatives; “It defines representing in terms of a transaction that takes place at the outset, before the actual representing begins.”15 Pitkin’s definition makes the inadequacy in these theoretical models explicit: formal representation is a priori representation because it is only concerned with how someone becomes a representative, not what they do as a representative.16 Thus, the unifying critique of formal representation is that it can only tell us that representation is authorization; if there is a representative then the people are being represented, but it establishes no criteria to determine if they are being represented well or what about them is being represented. 13 Pitkin, The Concept of Representation, 10-11. Suzanne Dovi replaces Analogous representation with Substantive representation, a term Pitkin uses herself when giving a description of what Analogous representation means, but since Pitkin retained the chapter title “Acting for: The Analogies” I have chosen to stick with the Analogous term. 15 Pitkin, The Concept of Representation, pg. 39 16 This formal concern with the transfer of authority takes many different forms: for Hobbes, it is seen in the formation of the social covenant and appointment of the Leviathan; for Organschaft theorists, it is seen in the decision of a member of the group being a binding force on or being ascribed to the rest of the group; for theorists of democratic representative government, it is seen in elections. 14 18 In driving at the “actual representation” that formalism fails to account for, Pitkin identifies a secondary, amorphous school of formalism, built on occasional passages of text rather than a comprehensive theoretical account, that attempts to create a standard for good representation by switching the focus from authorization to accountability: “Representation, if it means anything…means that the representative must be responsible to the represented.”17 These theorists speak of responsibility, but only in the sense of continued authorization as a corrective to bare authorization. As Pitkin explains, Where the one group defines a representative as someone who has been elected (authorized), the other defines him as someone who will be subject to election (held to account). Where the one sees representation as initiated in a certain way, the other sees it as terminated in a certain way. Neither can tell us anything about what goes on during representation, how a representative ought to act or what he is expected to do, how to tell whether he has represented well or badly. Such questions do not even make sense in terms of formalistic definitions like the authorization and accountability views.18 These arguments are appealing, Pitkin explains – we want representatives that we authorized and that are responsible, but they fail to account for (and perhaps even proscribe) the substantive actions of a representative. To understand what a representative does, rather than how one becomes or stays a representative, then becomes the focus of Pitkin’s inquiry. Here, again, another division is necessary as to do is too imprecise a verb to properly show us what a representative does – the substantive act of actual representation. Indeed, English is too imprecise a language to capture what Pitkin wants to explain, so she turns to two German words: “vertreten, to act for another, 17 18 Robert M. Hutchins, “The Theory of Oligarchy: Edmund Burke.” The Thomist, V (January, 1943): 64. Pitkin, The Concept of Representation, 58. 19 and darstellen, to stand for another.”19 The ideas behind the words raise two distinct questions: what constitutes the activity of representation and what must a representative be like in order to represent? Or, to return to the imprecision of English, is what a representative does sufficient to account for the whole of substantive representation, or is what the representative is – his or her being – an essential component of good representation? Pitkin’s examination of darstellen explores the foundations of both descriptive and symbolic representation. In its most extreme theoretical formulation, descriptive representation is concerned with the composition of a legislature rather than what it does. The representatives here are a reflection of the populace at large – a representative sample, in a precise, scientific sense – and this reflection is the source of the representative body’s legitimacy. The representatives in these accounts are standing for, not acting for, the represented. The distinction between darstellen and vertreten invites us to think about the action of representation; darstellen is not a standing up for or taking a stand against action, but a standing in for. It is essentially a passive action that is more a state of being than an act of will, so it cannot tell us what a representative does, only why the representative is representative. Pitkin does not make this connection explicit, but this standing for is an even more powerful a priori conception of representation than authorization, and therefore should be found lacking because it cannot tell us what “actual representation” is. But Pitkin does not raise the standard of “actual representation” here; she seems more accepting of this a priori requirement than of its authorization counterpart and presents a compelling, but more docile, argument against descriptive representation.20 19 Id., 59. Why does Pitkin allow this assumption to survive in this portion of her argument when she is unyielding in attacking it in her treatment of formalism? Because the assumptions of descriptive representation inherent in 20 20 Descriptive representation in its political form is commonly referred to as reflective representation – the representatives reflect the population at large – and is found in any system of proportional representation. In its purest, theoretical form, a system of proportional representation will accurately reflect not only the physical and socio-economic aspects of the represented, but also their opinions. This highlights a central assumption of this school of thought, which has been played a prominent role in the development of reapportionment since the 1982 Voting Rights Act: opinions are derivative of predetermined characteristics, not choice. There is some predictive power in this sort of economic, behavioral analysis, but is this sufficient to tell us what a representative does? If a representative exists as a reduction of a large population to its lowest common denominators so that it may rule itself, then perhaps it does. There are a number of powerful democratic assumptions in this theory of reflective representation that have allowed its advocates to present a compelling case that representation is democratic and therefore inherently reflective. Prominent members of the Founding generation, like John Adams and James Wilson, were certainly not rigid proportional theorists, but nonetheless argued that the legislature “should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason and act like them,” and that such a representative body would be, “an exact transcript of their minds,” “the faithful echo of the voices of the people.”21 Critics of proportional representation have successfully attacked it on the grounds that it “atomizes opinion, multiplies political groupings, increases the violence of faction, prevents the formation of a stable majority, darstellen are democratic, while the assumptions of the formalists can be authoritarian in the extreme, which is why Hobbes is the problem in her account. 21 John Adams, “Letter to John Penn,” The Works of John Adams (Boston: Little, Brown and Company, 18521865) IV, 205, see also 195; The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1966), I, 141, see also 132; James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007). 2 vols, I, 723. 21 and hence prevents the legislature from governing.” But these same critics, either tacitly or by force, ultimately yield to the assertion that representation is inherently reflective and thus, efficacy of representation must be sacrificed for accuracy of reflection in order to ensure truly democratic representation.22 Pitkin responds to this seemingly comprehensive victory of proportional representation with a turn to symbolic representation, and the world of art, to show that descriptive representation is only part, and not the whole, of darstellen. An actor on stage presents a representation of the character, but we do not expect minute accuracy, and the representational efficacy of stick figures on bathroom doors is not diminished by their lack of anatomical detail. This gap between the real and the represented, and our acceptance of the gap, undermines the central assumptions of proportional representation – that looking like correlates with effective representation. A painting is not a photograph, and even photographs are not much like the objects they depict. Even in paintings of the most painstaking accuracy, even in trompe-l’oeil, the artist does not reproduce reality, but combines paint in complex ways on canvas. This is something an artist has to learn to do, and a viewer has to learn to read.23 The symbolic aspect of darstellen shows us that there is knowledge necessary to representation, a knowledge that gives us context and therefore relies on education, customs, habits, etc. to have any effect. The color coordination of different road types on a map is useless to any real life application without additional information (like signs, numbers, cardinal directions, etc.), because all real roads are black. Similarly, X stands for 10, or for treasure, or for Christ in 22 23 Pitkin, The Concept of Representation, pg. 64 Pitkin, The Concept of Representation, pg. 66 22 Christmas, or a strike in bowling but a miss in soccer – you either need a key, or enough instances of the thing in order to intuit its meaning, but there will always be a difference between the thing that seems (what is representing) and the thing that is (what is represented). If the legitimacy of representation relies on how closely the representative or representative body approximates the represented, then it can never be completely legitimate. The inability of “standing for” to produce self-sufficient legitimacy in political representation invites an examination of vertreten – “acting for.” Theorists who argue for representation as “standing for,” Pitkin explains, are concerned with institutionalizing representation, creating the mechanisms for representative government, but not standards for adjudicating its practice. This is a subtle return to her ultimate criticism of the authorization and accountability lines of thought she identifies in formal representation, but there is a degree of inherent legitimacy in reflective representation that Pitkin tacitly accepts but never acknowledges (though not a self-sufficient degree of legitimacy, there is something natural in this form of representation, as opposed to Hobbes’s authorization which is wholly positive and conventional, and which Pitkin thus rejects under the expectation standard). Ultimately, formal, descriptive, and symbolic representation are all a priori standards of representation, this is why they all fail to meet Pitkin’s “actual representation” standard. In turning to “acting for,” Pitkin feels she is creating a new account of representation – not an unprecedented account, but one that can only be found in fragments of accounts, in the analogies of “an actor, an agent, an ambassador, an attorney, a commissioner, a delegate, a deputy, an emissary, an envoy, a factor, a guardian, a lieutenant, a proctor, a procurator, a proxy, a steward, a substitute, a trustee, a tutor, and a vicar” 23 offered by various theorists, but never made comprehensively.24 This is representation found in doing, not being. Pitkin’s search for the substantive action of representation is wholly reliant on her philological method. This methodological approach effectively removes the political aspect from representation by examining each aspect of actual representation, that is, the word describing the official action, only in its philological and etymological context. Each of the offices she lists represent different scopes of authority and official duties, but they are examined in the context of their relationship to the words of “acting for,” not relative to the regimes, or the needs of the regimes, which created each officer. Pitkin divides these analogies into four groups – “acting for” or “being an agent of”; “acting in the interest of” or “taking care of”; “acting in place of”; and “being sent by”25 – and then examines them in relation to the linguistic development of the ideas agere and facere, by and behalf, substatuere and attornare, deputare and putare, and legare and ambactiare.26 Implicit in this methodology, though never acknowledged by Pitkin, is a teleological assertion central to the claims of Historicism: History, or the unfolding of history, reveals the meaning and end of representation, with perfect representation at the end of History. This assertion also sheds further light on Pitkin’s photographic analogy – if there is a telos, then there must be a complete vision of the whole that each instantiation grasps only in part. It also explains her disinterest in political context – if there is a telos, then historical development reveals it and every instance of political representation will, of necessity, deviate from this historical standard. 24 Pitkin, The Concept of Representation, pg. 119 Pitkin, The Concept of Representation, 121. 26 Id., 121, 127, 131-133. 25 24 As Pitkin works through the etymology and English tradition of representation, a conscientious reader would expect a return to the photographic analogy, the revealing of a complex whole that should share praise similar to Michelangelo’s David – if its parts are not absolutely precise in detail, its sum represents the beautiful. Indeed, Pitkin’s treatment of the symbolic aspects of darstellen seemed to have set the table for such an artistic conclusion. A less scrupulous reader would at least expect that the coming conclusion give a good account of itself. Both readers will be disappointed. The definition of “good” or “actual” representation that comes out of any philological inquiry can only be directly related to how closely the practice of “acting for” matches the definition of “acting for,” or turning to the literature and theory that has come after Pitkin, the telos of “acting for.” This creates another a priori standard, more difficult to see since it relies on the words that control our ideas of representation, and more tautological than the other a priori standards Pitkin dismisses. Pitkin abandons any attempt to give a comprehensive account of the whole that was the guiding image from the outset, but nonetheless holds firm to her philological method. Her meticulous examination of each of the forms of representation ultimately reveals a concept so expansive in meaning that the only shared characteristic among every instantiation is the making present of something otherwise absent.27 Beyond this simple definition, the teleological assumption that representation is a single thing that can be perfected can support no additional pressure; it fails to account for particulars that remain essential to the use of the word in its varied political and non-political contexts. Without acknowledging this inadequacy, or the failure of her comprehensive hypothesis, or the fact that words often represent multiple ideas and that 27 Pitkin, The Concept of Representation, 237. 25 penumbral meanings frequently defy consolidation (thus undermining her philological method), Pitkin shifts her concluding focus to the questions that drew her to examine vertreten – what is actual representation and how do we define good representation? – in a classic, and very well executed, bait and switch. The return to the initial question, with a complete change in focus, allows Pitkin to present a new, expectations-based explanation that provides a basis to adjudicate substantive representation. Good representation seems to mean what we expect good representation to be. These expectations are, like the development of the words central to her etymological analysis, a product of historical, theoretical, and practical development.28 “For this purpose,” Pitkin explains, our basic prerequisites seem very few. We would be reluctant to consider any system a representative government unless it held regular elections, which were “genuine” or “free.” We would be reluctant, further, to consider a government representative unless it included some sort of collegiate representative body in a more than advisory capacity. We would not readily accept a system as representative in which the entire government was in the hands of a single ruler, even if he was subject to reelection at regular intervals.29 At this point Pitkin has no recourse to the idea that these expectations are inherent in the word representation itself, only derivative of the historical practice of the concept – a very subtle, but essential, distinction that again evinces the break between the rigor of her analysis and strength of her conclusions: “Perhaps it is merely historical tradition” that we expect collegiate bodies; 28 To give an overly generous defense of Pitkin, the best I can think of is that she felt by defining each of the types of “acting for,” she was simultaneously narrowing the concept of representation by examining each instantiation of acting for, e.g. at the same time the vicar’s actions are in some sense a representation, he is also distinct from representation itself, hence the need for an additional word. So at the same time that each distinction partakes of the nature of the thing, it reveals the bare essentials of the thing that are inherent in the word itself and need no other word to capture its meaning. There’s a whole lot of Plato’s Sophist in this possible defense, but I don’t think it was what Pitkin was trying to do, nor is it successful in that respect either. 29 Pitkin, The Concept of Representation, pg. 235 26 perhaps is has to do with “isomorphism or one to one correspondence in descriptive representation”; or perhaps we equate representation with responsiveness, and responsiveness with a place for the minority viewpoint in government.30 To reduce the question to the basic vocabulary of American politics: why are frequent elections, collegiate and diverse bodies, and checks and balances necessary to representation? Beyond these “perhaps” clauses, Pitkin is at a loss to explain how her list of minimal expectations could possibly be derived from the concept representation itself. Can we know what representation does without first knowing why we need it? This is a question Pitkin never asks and her methodology is wholly incapable of producing an answer. I submit that we cannot, and for this reason Pitkin’s The Concept of Representation, the most preeminent and most cited work on the question of representation, fails to provide any substantive foundation upon which political representation can be properly understood or successfully executed. That the definition of good representation could be derived from the expectations of the represented, or even disinterested observers, is a fantastically democratic idea that highlights several representational questions with which Pitkin struggles: who, or what, is being represented, and how do we define legitimacy in regards to representation? In terms of political representation, Pitkin disregards a “what” as being capable of being represented; for her, since representation seems to lend itself to popular government, only a “who” can be represented. Pitkin never goes so far as to say that representation is inherently popular, but the expectation standard reveals the assumption – only a “who” can expect, and therefore only meeting the expectations of expectant whos is legitimate representation. Pitkin tries to establish a species of 30 Pitkin, The Concept of Representation, pg. 235 27 this argument in the first chapter of her book, and in a number of her articles, going to great lengths to discredit the representational theory of Hobbes. There are a number of challenges that Hobbes’s theory presents to Pitkin’s understanding of representation, what she calls “The Problem of Thomas Hobbes,” but the one that is of concern here is that representation can be authoritarian, decidedly un-democratic by any modern standard, and still be legitimate.31 There is great merit in the assumption that representation is inherently popular, but this is not the same as inherently democratic, nor does being inherently popular necessitate that representation be exclusively popular. The popular nature inherent in representation is derived from the assumption that human beings are naturally equal. It should be no surprise then that Hobbes was the first political philosopher to posit both the natural equality of man and the need for representation in the properly constituted regime. The natural equality Hobbes identifies is particularly base – an equal ability to kill one another – but it nonetheless creates the necessity to found the political authority on the authority of all, rather than the few or the one. Hobbes passes over a more democratic formulation – founding on the authority of the many – because the nature of his natural equality and the needs of mankind as they seek to leave the state of nature demand unanimity in order to effectively secure peace. The first law of nature in Hobbes’s account is “that every man ought to endeavor peace,” and the second, “that a man be willing, when others are so too, as far-forth as for peace and defence [sic] of himself he shall think it necessary, to lay down his right to all things, and to be contented with so much liberty against other men, as he would allow other men against himself,” 31 See The concept of Representation, Chap. 1; Hanna Pitkin, “Hobbes’s Concept of Representation – I,” The American Political Science Review 58, No. 2 (June 1964), 328-340; Hanna Pitkin, “Hobbes’s Concept of Representation – II,” The American Political Science Review 58, No. 4 (Dec. 1964), 902-918. 28 but these laws, nor any other natural laws Hobbes identifies, have no natural enforcement mechanism, even when men covenant one with another to seek peace.32 Therefore, Hobbes reasons, “it is no wonder if there be somewhat else required (beside covenant) to make their agreement constant and lasting, which is a common power to keep them in awe, and to direct their actions to the common benefit.”33 “The only way to erect such a common power,” a power of holding the covenant makers in awe, “is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will, which is as much as to say, to appoint one man or assembly of men to bear their person.”34 This is Hobbes’s representative: the Leviathan. In bearing the persons of the multitude, the Leviathan raises something that is naturally incapable of being one up from a state of conflict to a statue of unity, from a state of nature to a man-made state of peace.35 This new, elevated state is essential to Hobbes’s political project. This is more than consent, or concord; it is a real unity of them all, in one and the same person, made by the covenant of every man with every man, in such a manner as if every man should say to every man I authorise [sic] and give up my right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner.36 In Hobbes’s account, this new, popularly – even unanimously – elected Leviathan carries the sovereign power and “in him consisteth the essence of the commonwealth, which “(to define it) is one person, of whose acts a great multitude, by mutual covenants one with another, have made 32 Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis: Hackett, 1994), XIV.4-5, 80, emphasis from original excluded. Hereafter Leviathan. 33 Leviathan XVII.12, pg. 109, emphasis added. Keeping the people in awe is a second form of a priori requirement that Pitkin fails to account for in her examination of representation: the needs of the regime. 34 Leviathan XVII.13, pg. 109. 35 See also Leviathan XVI, especially 14, 104. 36 Leviathan XVII.13, 109, emphasis in original. 29 themselves every one the author, to the end he may use the strength and means of them all as he shall think expedient, for their peace and common defence.”37 The Leviathan is now the people’s representative, they are the authors of his actions and are now forever bound to obey him.38 It is at this point that Pitkin objects, on grounds that foreshadow the development of her expectations-based model: Calling the sovereign a representative arouses other expectations in the reader which the Hobbesian system does not fulfill. When we look at the Hobbesian political structure as a whole we are most aware of how partial, formal, and empty of substance his concept of representation is. A sovereign given complete power in perpetuity, with no obligation to consult the wishes of his subjects and no duties toward them which they can claim – surely nothing could be further from what we ordinarily think of as representation or representative government! We read the Leviathan and feel that somehow we have been tricked.39 This appeal to both expectation and vanity – we are too smart to be treated so poorly, to be tricked! – evince a fundamental misunderstanding of what Hobbes is arguing when he discusses representation. Clifford Orwin challenges Pitkin’s reading of Hobbes on the grounds that she fails to take Hobbes’s claim seriously that “the right to all things” means the right to all things, including continued consent.40 But this too fails to capture that Hobbes’s representative does not represent the people, even people who have ceded all things to the Leviathan for the sake of peace in the commonwealth. The Leviathan represents a what, not whos. The Leviathan represents natural law. 37 Leviathan XVII.13, 109. see Leviathan XVI, especially 5-8, 102. 39 Pitkin, The Concept of Representation, pg. 35, emphasis added. 40 Clifford Orwin, “On Sovereign Authorization,” Political Theory 3, No. 1 (Feb. 1975), 26-44; Hanna Pitkin, “Comment on Orwin,” Political Theory 3, No. 1 (Feb. 1975), 45-49; Clifford Orwin, “Reply to Pitkin,” Political Theory 3, No. 1 (Feb. 1975), 50-52. 38 30 In Hobbes’s state of nature, each man is sovereign and perpetual conflict is caused by every man’s right to everything, including the person of others.41 There are natural laws to which all men are subject, but these laws, without a power to enforce them, are more properly understood as dictates of reason. In the state of nature, Hobbes explains, “nothing can be unjust. The notions of right and wrong, justice and injustice, have no place. Where there is no common power, there is no law; where there is no law, no injustice.”42 When the people covenant with one another to cede their competing rights to everything, they are not covenanting with the Leviathan, they are covenanting with each other to create the Leviathan. The Leviathan remains in the state of nature, and his obligations remain defined by the dictates of reason – Hobbes’s natural laws – and not by any positive obligation asserted by the people. The individual, and any claim or expectation of continued relevance vis-à-vis representation as a modern democratic reader might understand it, is absorbed into the whole of the commonwealth. This is, in Hobbes’s words, a real unity of them all, because it adds the people’s strength to the unitary will of the Leviathan and, in exercising that will and commanding that strength for peace and security, the Leviathan represents natural law to the people. Hobbes’s account of representation shows us a popularly based mechanism that meets the defined ends of the regime – both points Pitkin fails to recognize. However, Pitkin is correct in her assessment that we would reject this model in favor of one that offers continued consent. To say we have been tricked is to fail to understand Hobbes on his own terms, or to understand the origin of our preference for continued consent, but again, beyond the perhaps clauses, Pitkin’s inquiry is incapable of explaining why we have this preference. To remedy this deficiency, we 41 42 see Leviathan XIV.4, 80. Leviathan XIII.13, 78. 31 must turn to Locke, a thinker Pitkin mentions only once in passing. Indeed, Locke’s failure to include Representation in his table of contents has led him to be almost entirely ignored. Locke’s account of representation begins, like Hobbes’s, with the natural equality of man – but this is a higher, nobler equality, found in a more civilized state of nature. To understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending on the Will of any Man. A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another.43 For Locke, man is naturally endowed with the same rights to life, liberty, and the executive power in the law of nature. This comprehensive equality establishes an essential place for consent that was absent – even denied – in Hobbes. Because we are equal in right, rather than in strength – or as Hobbes put it, an ability to kill one another – it is unjust, by nature, to attempt to rule over another without their consent. Locke calls this unjust dominion a state of war, and we escape it through compact, by agreeing with one another to divest ourselves of our executive power and cede it to a public authority. In ceding our natural right to the executive power, Locke is not asking us to create a second Leviathan. We maintain the balance of our natural rights, which establishes the grounds for and the necessity of continued consent. In establishing a common power to judge among us, Locke explains, we create the need for a new power: “The great end of Mens entring into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws 43 John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), II.4.1-8, 269, emphasis in original. Hereafter Second Treatise. 32 establish’d in that Society; the first and fundamental positive Law of all Commonwealths, is the the establishing of the Legislative Power.”44 Locke is vague on who the members of this legislative power will be, but it is clear that the ends of the regime establish the requirements for what these legislators – these representatives – are supposed to do. Furthermore, Locke is equally clear that substantive and legitimate representation are found in the choosing of the representatives: “whenever the People shall chuse their Representatives upon just and undeniably equal measures suitable to the original Frame of government, it cannot be doubted to be the will and act of the Society, whoever permitted, or caused them so to do.”45 For Locke, good representation requires the equal representation of natural rights. These are certainly the natural rights of people that are being represented, but that is not the same as the will of each individual, which is also why there are natural limits to a representative government’s power in this formulation. Locke’s theory of representation – that a what is being represented, in addition to whos – shows us the theoretical underpinnings at which Pitkin is only capable of guessing. The representation of natural rights makes continuing consent essential, necessitates the establishment of collegiate legislative bodies as the first act of society, and highlights the natural differences between executive and legislative power that make a separation of powers essential to any just regime. The essential aspects of modern representative government at the heart of Pitkin’s expectations are not isomorphisms – the product of evolutionary convergence or, more colloquially, dumb luck to which we have been habituated, but are institutions and practices essential to the proper representation of natural rights, clearly introduced into the cannon of political philosophy by Locke. 44 45 Locke, Second Treatise XI.134.1-5, 355, emphasis in original. Locke, Second Treatise XIII.158.35-40, 374 emphasis in original 33 Pitkin is adamant in her direct rejection of adjudicating representation relative to a particular theory or historical practice: “It is not enough to say that representation means now one thing, now another; nor does it follow that each writer is entitled to his view and that all theories or [sic] representation are equally valid.”46 Any species of relative adjudication is, as Pitkin explains, a parlor trick: “Think of the legislature as a pictorial representation or a representative sample of the nation, and you will almost inevitably concentrate on its composition rather than on its activity.”47 She is correct, because the assumptions we make must change what representation looks like. If representation is the making present of something otherwise absent, then what we are making present will have a profound impact on what representation looks like. Thus, if we are making natural law present, then Hobbes’s account is the most accurate; if natural right, then Locke’s. Pitkin’s rejection of relative theoretical and historical analysis is only valid if the question she is searching for is what is good representation, not what is representation simply. But we have already seen that Pitkin cannot provide an answer to what is good representation; her methodology is inherently and irretrievably flawed. Good representation requires the consideration of too many a priori requirements to be found in Pitkin’s efforts to base representation in expectations rather than a priori considerations like electoral mechanisms, regime structures, and the ends of the regime. Indeed, it seems impossible to separate good political representation itself from larger questions of what is a good regime. This largest question of political philosophy – what is justice – cannot be answered by finding good representation, and this is where Pitkin, despite good intentions to the contrary, gets lost. Good representation simply will be coherent, internally consistent representation. This 46 47 Pitkin, The Concept of Representation, 226. Pitkin, The Concept of Representation, 226. 34 is part of the appeal of descriptive representation – that there is visual confirmation of representative equality, but it does not mean that you will get good government, which is what Pitkin desires to see when she invokes substantive representation. There is no universal standard for good representation because representation will of necessity look different as the ends of each regime are defined. The search for the best practicable regime was at the heart of the Founders’ project, and it is impossible to read Madison’s works without seeing his intimate concern with the question. Madison recognized that good representation is necessary, but not sufficient, to produce good government. Without equal and just representation that is consistent with the founding principles of the regime, Madison agrees with Locke, you cannot have good government; nevertheless, representation remains subordinate to a number of other considerations, and is therefore almost exclusively found in fragmentary portions, scattered throughout larger texts. Pitkin’s four categories remain useful to the identification of various instantiations of representation, but a new categorization is necessary to make sense of a question that has been fundamentally misunderstood and incorrectly answered for over 50 years. Rather than asking what is representation simply, or universally, we must begin with “Why do we need representation?” This question allows us to consider both the ends of representation and representation’s relationship with popular regimes. The various answers offered to this question fall into three new categories: accidental, Historical, and essential.48 48 I am not set on the names of each of these categories – I could be easily persuaded to change the first and the third, but their characteristics are distinct. The first category I call accidental in the Aristotelian sense because the accounts in this category (both positive and negative) see representation as a non-essential aspect of modern government. It exists to take the place of direct democracy because we are simply too big to allow for direct democracy, but if there were another mechanism to more closely approximate strict democracy they would take it. This classification could also be called historical because these accounts also view representation 35 The first, and most prominent type of representational account during Madison’s life, is the accidental. The central, unifying theme of these accounts is one of substitution. As Helen Cam explains in her study on the theory and practice of Medieval representation, “[i]f you want to get the opinion of a crowd, whether of children or of adults, you will in effect say, ‘Don’t all talk at once – who will speak for you?’ If an agreement on action has been arrived at by a group of people, one man will naturally be empowered to act for them.”49 By conceptualizing representation as a substitution of one voice for many, the accidental accounts argue that representation is a non-essential element of popular government, a fungible mechanism that reduces a popular cacophony to an actionable voice that exists largely for its convenience. In the terms of today’s tech startups, it is a model ripe for disruption – representation adds nothing of value to popular government per se and can be replaced once a more efficient mechanism for substitution is found. Substitution is neither intrinsically good nor bad, and thus a secondary distinction within the school arises on this point. The vast majority of accidental thinkers display a marked preference for democratic regime forms, but the act of substituting one for another, or more specifically one for many, marks a shift away from the purest forms of democracy. A number of French thinkers, as disparate as Montesquieu and Benjamin Constant, recognize a break as an accidental product of historical development, again something that happened because regimes grew too large to maintain stricter democratic forms. I believe the Historical name for the second category – the Historicist and existentialist accounts of representation – is correct and not in need of changing, but Sietz’s inclusion in this category (and his specific rejection of Historicist assumptions) does invite a rethinking of the name. The third category I call essential here, to mirror the Aristotelian meaning of the first, but I believe it could also be called intentional. This category includes Hobbes, Locke, Burke, Madison, and a few French thinkers who see representation as an unique and essential component of the best regime. Sietz makes an argument that representation is instrumental, and that term could be appropriated to name this category as well, but I have several nuanced, but important, distinctions from Sietz that make it prudent to apply a different term. 49 Helen M. Cam, “The Theory and Practice of Representation in Medieval England.” History 38 (1953): 18. 36 between ancient and modern forms of representation in what is now called the discontinuity thesis.50 The proponents of the discontinuity thesis generally see representation and popular sovereignty as incompatible ideas, with the ultimate consequence being that a regime that uses representative mechanisms cannot be democratic. In On Social Contract, the most famous text from this line of reasoning, Jean Jacques Rousseau argues that sovereignty is both inalienable and indivisible, thus the people must act for itself in order for the general will to be in accord with the common good. “Power can be perfectly well transferred, but not the will,” Rousseau explains, and therefore the action of sovereignty is the exertion of will.51 That exertion is incapable of being represented, and thus the citizen is either exerting her will or being enslaved by her representative as he exerts his. Rousseau’s thought will receive a thorough examination in another chapter. Here it is sufficient to note the rigid theoretical divide that Rousseau places between representation and a legitimate popular government. This French line of thinking did not make its way to early America in any rigorous form, but persists in a number of lesser theories that hold representation to be theoretically antithetical but practically necessary to modern democratic government.52 Robert Dahl’s critique of the American Constitution is the seminal example of this school of thought in modern times: “[w]hat I am going to call the ‘Madisonian’ theory of democracy is an effort to bring off a compromise between the power of majorities and the power of minorities, between the political equality of all adult citizens on the one side, and the desire to limit their sovereignty on the 50 Nadia Urbinati, Representative Democracy: Principles and Genealogy (Chicago: University of Chicago Press, 2006), 3-7 and 62-66 esp. 51 Jean Jacques Rousseau, “On Social Contract.” The Basic Political Writings, 2nd edition, ed. Donald A. Cress (Indianapolis: Hackett, 2011), II.1, 170. 52 Perhaps the closest practical example is revolutionary Pennsylvania, but that’s a nuanced discussion and adds more confusion than clarity here. 37 other.”53 As a corrective to this limit on sovereignty, Dahl offers what he claims is a new theory of popular government. This new regime type, polyarchy, seeks to maximize sovereignty by taking his vision of Madisonian representation as one that empowers a minority to rule, and turning it on its head by empowering the majority to rule without bounds. This brief summation of a theory that has been a foundational idea in democratic theory may seem like a corrective to the French discontinuity thesis, but Dahl reaffirms the central tenant that democratic sovereignty and representation are incompatible. While polyarchy may help achieve the ends of a democratic society – something distinct from a democratic regime, it is not democracy because the people are not ruling directly.54 Joseph Schumpeter’s Capitalism, Socialism, and Democracy adds another line of reasoning to the discontinuity thesis: modern democracy is not popular rule, but an electoral competition among elites. In his observations on the relationship between representation and democracy, Schumpeter first challenges the theoretical origins of representation and then breaks with the traditional concerns of consent or legitimacy that are often intertwined with the concept of representation and focuses on the capacity of a democratic people to rule. Representation as an institution is given a distinct post hoc flavor by this methodology; it is not an institution derived from natural law or natural right as we see in Hobbes and Locke, but one of utilitarian convenience. In the classical theory of democracy, Schumpeter explains, “the selection of the representative is made secondary to the primary purpose of the democratic arrangement which is to vest the power of deciding political issues in the electorate.” But with this new, utilitarian 53 Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 2006), 4. This division of society and regime is in contrast to Tocqueville’s explicit identification of America as a democracy because of its democratic society. This will have greater meaning once the French aspect of representation is discussed. 54 38 conception of representation, the act of choosing the representative no longer follows from the democratic arrangement that the people rule themselves and Schumpeter invites us to inverse the relationship. Suppose we reverse the roles of these two elements and make the deciding of issues by the electorate secondary to the election of the men who are to do the deciding. To put it differently, we now take the view that the role of the people is to produce a government, or else an intermediate body which in turn will produce a national executive or government. And we define: the democratic method is that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote.55 Under this definition democracy is a governmental form chosen by the people and ruled by elites, and representation is the method by which the makers of public opinion are chosen. With Dahl and Schumpeter’s conceptions of representation and democracy at the foundation of most modern schools of democratic theory, Nadia Urbinati’s observations on the current status of representation in democratic theory should come as no surprise: Only a tiny minority of theorists assumes that representation is not alternative to but in fact supports democratic participation. Most scholars argue instead that representation has been the most ingenious invention constitutional designers have created to neutralize political participation by making the people a legitimizing force at the instant they renounce their ruling power. Skeptics of both ‘pure’ and ‘representative’ democracy agree that representative democracy is an oxymoron.56 The vast majority of what modern political science has to tell us about representation is fundamentally negative, and theoretically opposed to the possibility of a regime being both representative and democratic. 55 56 Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper, 1942), 269. Urbinati, Representative Democracy, 5. 39 Even the positive accidental accounts are more properly conceptualized as non-negative. The Anti-Federalists did not recognize alienation of sovereignty as an inherent consequence of representation, but did identify it as the probable outcome of a poorly constructed representative mechanism. In these accounts, the government and representatives are not distinct entities from society and the people. To remedy the potential danger of separating the representatives from the people, the Anti-Federalists argued for a number of strict, democratic features that would properly reproduce the will of the people in the halls of the legislatures. These accounts of representation called for large representative bodies, frequent – at least annual – elections, term limits, popular recalls, and unicameral legislatures, all for the desired effect of reducing the distance between the representative and the represented, of keeping the two bodies as similar as possible while taking advantage of the convenience offered by the representative mechanism. Indeed, the ends of this conception of representation are to “re-present” the people, to minimize or even abolish the idea of a deliberative representative and create an obedient, mandate-focused one. These Anti-Federalist arguments are the early forms of the liberal, democratic theories of proportional representation that later found their full explanation in John Stuart Mills’s writings and can be found in modern American politics in the legacy of the 1994 Contract with America, as a persistent, though subordinate, chord in the Court’s representational jurisprudence, and in the assumptions of every pop culture news story that criticizes the whiteness, maleness, and lawyer-ness of the members of Congress in contrast to the population at large. This is an account of representation that must look like the people to be just, a classic case of descriptive, reflective representation that it takes direction, not delegation, from the people. “There can be no free government,” Brutus explains, “where the people are not possessed of the power of making the laws by which they are governed, either in their own persons, or by 40 others substituted in their stead.”57 Though Brutus does indicate the possibility of a more expansive role for representation beyond simple reflection – it can “deliberate with wisdom, and decide with dispatch” where the people at large cannot – an examination of the principles of his thought make clear that the Anti-Federalist principle of representation is adamantly descriptive.58 The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them — a representation of the people of America, if it be a true one, must be like the people. It ought to be so constituted, that a person, who is a stranger to the country, might be able to form a just idea of their character, by knowing that of their representatives. They are the sign — the people are the thing signified. It is absurd to speak of one thing being the representative of another, upon any other principle… It must then have been intended, that those who are placed instead of the people, should possess their sentiments and feelings, and be governed by their interests, or, in other words, should bear the strongest resemblance of those in whose room they are substituted.59 Representation is nothing of itself, only a reflection of the society at large, and the people must always remain the principle and focal point of political power. A central assumption to this line of reasoning is that there is no tension between the common good and the sentiments, feelings, and interests of the many which Brutus clearly identifies as the motive force of any just and free government. The Anti-Federalists never went as far as Rousseau in arguing for the inherent goodness of mankind, but they certainly believed in the inherent goodness of the many over the few. Vice is found in the ruler, not the ruled, and the capacity for error in judgment is not an innate human quality, but a condition derived from greed 57 Brutus, “IV,” The Anti-Federalist: Writings by the Opponents of the Constitution, ed. Herbert J. Storing (Chicago: University of Chicago Press, 1985), 127, emphasis added. 58 Brutus “III,” The Anti-Federalist, 124. 59 Idem, 124-5. 41 and avarice. As Herbert Storing notes, “[w]hen Brutus defined tyrannical government…he seemed to suggest, by omission, that there can be no tyrannical government of the many, though on the whole it is more accurate to say that, while not denying the possibility of majority tyranny, he did not see the need to discuss it.”60 This omission is because, in the Anti-Federalist line of thought, representation offers no solution to this problem, and, and this is the big and, it is only a problem insofar as it relates to the size of the regime, not the mechanism of representation. Brutus and the Anti-Federalists recognize that the sentiments, feelings, and interests of competing groups could come into conflict, as evidenced by the frequent appeals to the varied interests of each of the States, but these conflicts only provide reasons to be skeptical of the proposed Constitution, or even to reject it. In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving, against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good. If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we should be one government.61 The Anti-Federalist solution to this disparity and conflict is to reduce the size and extent of the regime, to reduce the opportunity for, rather than mediate, conflict. The realm of government should be constricted to a realm of similar sentiments, feelings, and interests. Only with the literal and figurative proximity of a small republic can representation succeed and fulfill its potential of contributing to the common good, just as the people would do themselves if it were practical, or sufficiently convenient, that they do so. 60 61 Herbert J. Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 2008), 39. Brutus, “I,” The Anti-Federalist, 114-115. 42 As a whole, these accidental accounts present a conception of representation that is in conflict with modernity and must be constrained, or abolished, in order to conform to the needs of modern popular government. For discontinuity and modern democratic theorists, the conflict between representation and modern sovereignty is almost irreconcilable: you cannot be both represented and sovereign. The entire spectrum of American arguments on representation from the founding period rejects the idea that representation conflicts with sovereignty, notwithstanding strong tradition of distrust in ruling bodies. The Anti-Federalists’ concern with modernity is derived from the size of modern regimes and the varied interests that size encapsulates, not the theoretical coherency of representation and sovereignty as principles. But representation produces no goods beyond facilitating wholly democratic regimes of manageable sizes and practicable spheres. Representation is here a substitution, the reason and ends of the entire concept are merely a mechanistic substitution, and as such the entire concept could just as well be substituted with another concept like reduction, reflection, or reproduction without theoretical consequence. Gordon Wood’s influential work on representation during the American Revolution produces an understanding of representation that falls firmly into the accidental accounts: representation is the substitution of one for many others. For Wood, this substitution is properly focused on the individual rather than detached interests of the nation, a distinction which defines his analytical scale between actual and virtual representation. In focusing on the American regime’s differences from its British progenitor, Wood asks an important question that pulls his study away from representation simply and reveals the foundations of the Historical accounts of representation that were contemporaneously rising to prominence in a period when both the academy and the courts displayed a marked preference for historical analyses as 43 intellectual/theoretical inquiry. Why do Americans need more than one representative? In the British system, the people are only represented in the House of Commons, the House of Lords and the Monarchy representing other hereditary powers and estates of the realm. Why do Americans seek representation at every level of government, with bicameral State and Federal legislatures, and establish electoral mechanisms for governors, the President, and even judges that lay some claim to their being representatives of the people? Wood’s inquiry does not produce any insight into what representation produces for democracy – as an example of the not negative accidental accounts, representation in this context exists largely for its utility – but he does assert that representation is essential to the American regime as a means of justification: Only by profoundly transforming the traditional way in which people participated in government could Americans explain the conception of federalism; only then could they explain the revolutionary idea that the people were equally represented in two or more parts or levels of government at the same time.62 American representation then, exists in its present form as an ad hoc rationale for the regime’s institutional arrangements and is non-essential to securing the ends of popular government. With this assertion present from the outset, Wood turns to the historical record to examine how this concept of representation developed. Virtual representation was the dominant conception of representation in England prior to the Revolution, and it provided the rationale for continued home rule of the distant colonies. Representatives in virtual accounts are above parochial, individualized interests and are responsible for deliberating on the true interests of the nation as a whole, not subjecting themselves to the wishes of their local electorates. They are representatives of national unity and identity and the location of the seat which they represent is 62 Gordon Wood, Representation in the American Revolution: Revised Edition (Charlottesville: University of Virginia Press, 2008), 2. 44 merely an historical artifact. As Sir Edmond Burke, easily the most cited advocate of virtual representation, explains in his famous speech to the electors at Bristol, a place from whence he haileth not but doth represent, Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.63 This is a representation of interest with a particular focus on representing unity, representing the unity of the nation to the electorate and the world. Or, to paraphrase the powerful wording of Hobbes, “it is the unity of representer, not the unity of the represented, that maketh the [nation] one.”64 At the other end of Wood’s representational spectrum is actual representation, which eschews the detached nature of virtual representation in favor of one that is explicitly descriptive and reflective, often going so far as to also require that the representative submit to binding instructions from his/her constituency. This is the form of representation Burke explicitly rejects, one that destroys the deliberative aspect of representation by reducing representatives to agents, advocates, or ambassadors that are obliged to maintain parochial priorities at the expense of national interests. As Wood lays out his narrative, it is clear that the American colonists first tried to make a claim for a right to representation in terms of virtual representation, but such an argument was only adequate to establish a distinct national identity, similar to the Scottish claim 63 Edmund Burke, “Speech to the Electors of Bristol, 3 Nov. 1774,” The Founders’ Constitution, eds. Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 1987), Vol. 1., Chap. 13, No. 7. 392, emphasis in original. 64 Hobbes, Leviathan. XVI.13, 104, emphasis in original. 45 of national identity, but that distinct identity was not sufficient grounds for different representation. The inadequacy of virtual representation to both meet their immediate political interests and justify an expanded claim to representation pushed the colonists to revolt both politically and theoretically. Since many of Wood’s particular observations will be discussed in the next chapter, we can approach the remainder of the argument as a broad stroke narrative that follows the American movement from the inadequacies of virtual representation to the extremes of actual representation and then to some practical middle ground. This is a very utilitarian account that seeks to make sense of an immensely complicated transition that took place, for the most part, within one generation.65 But it provides little theoretical insight into why a particular choice would be made, and what insight is provided often forecloses the possibility of rational action beyond that great universal principle of political action: “it seemed like a good idea at the time.” As the colonists push for representation, Wood finds their claim to representation in their social equality and varied interests, their developing preference for geographical and numerical representation as a “fulfillment of localist tendancies,” and their “increasing focus on the right to vote as a measure of representation” in a corrosive atmosphere of jealousy and suspicion between representer and represented.66 In basing the historical and practical development of representation on perceived necessities and interest-driven conflict, rather than natural rights and social contract theory, Wood is able to provide an a-theoretical account of the origins of 65 Until this point in his argument, Wood presents a well documented account that offers a number of interesting insights and presents the debate in the terminology of the day – a vastly underrated skill among modern historians. 66 Wood, Representation in the American Revolution, 30; 50. 46 representation that makes the history of representation from its medieval origins to the founding generation appear as a fluid, consistent movement. The innovative aspect of Wood’s account of representation is not, however, this new cohesion between medieval and modern – this is an idea initiated and echoed by a number of other historians, including Helen Cam, Samuel Beer, and Bernard Bailyn.67 Wood’s innovative addition is a complete rejection of the idea of the mixed regime as the best classical regime form. From Aristotle to Montesquieu, and to all the lesser lights in between, the argument has been that a stable regime needed to mix the elements of society: the one, the few, and the many. Under Wood’s conception of representation, this perceived classical necessity is rendered irrelevant and the whole of government can be founded exclusively on the people. Wood draws his initial insight from Pennsylvania’s revolutionary-era constitution: With election or simply the derivation of authority from the people becoming the sole basis and measure of representation, the several branches of the government began to seem indistinguishable – all somehow representative of the people. Advocates for an upper house in Pennsylvania, whose radical constitution of 1776 provided for only for a unicameral legislature, discovered that they could no longer justify a senate in the traditional terms of mixed government: any talk of embodying an aristocracy in the government smacked of a House of Lords and was immediately jumped upon. Thus those who wanted a senate for Pennsylvania were compelled to justify is as simply “a double representation of the people,” made necessary by the need to divide a mistrusted political power. But if the people could be represented by two institutions at the same time, why couldn’t they be represented by three or four or more institutions? Suddenly the people could be everywhere in government, and the theory of mixed government had lost its meaning.68 67 Samuel Beer, “The Representation of Interests in British Government: Historical Background,” American Political Science Review 51 (1957), 614-628; Bernard Bailyn, The Ideological Origins of the American Revolution, Enlarged Edition (Cambridge: Harvard University Press, 1992), 160-175. 68 Wood Representation in the American Revolution, 50-51. 47 Wood recognizes that this single instantiation in the constitutional cacophony that was the revolutionary period does not seal his argument. In returning to his narrative framework of virtual versus actual representation, and its surrogates of English representation as a foundation for mixed government and Revolutionary American representation as a foundation for balanced democracy, Wood seeks to show that this movement away from the classical theory of mixed government is the historical movement that inspired the new Constitution, even if it was held back from reaching its full democratic potential. It was not unreasonable now to argue that “the principles of representation” should be extended “throughout every public body” so that all elected, hence representative, officials – senators or others – should be elected in proportion to the population, the logic of which was finally realized by the Supreme Court in its state reapportionment decisions of the 1960s nearly two centuries later.69 The Senate – its apportionment, its initial elective mechanism, its raison d’être as a distinct chamber in the legislature – is a throwback to a form of representation that the principles of the Constitution, as Wood explains them, sought to leave behind. As Wood notes from the outset, and Robert Dixon explains in his exceptional work on the subject, had federalism and the Senate’s apportionment, in particular, not been written into the Constitution, then it too would have been found unconstitutional during the apportionment revolution’s fulfillment of the promise of actual representation Wood identifies in the Constitution. But, even without fully embracing actual representation, the new theory of representation that emerged from the Constitutional Convention was revolutionary in Wood’s final estimation: “The idea of classical 69 Wood, Representation in the American Revolution, 51. 48 politics, the politics of Aristotle and his successors, that involved balancing the three simple forms of government now no longer made sense in America.”70 Wood’s reading of history is very similar to most advocates of the second line of reasoning on representation, the Historicist school, but Wood’s account lacks a number of central, teleological assumptions that necessitate the capital H History. As a whole, there are very few accounts made with a specific focus on representation in the Historicist tradition as they come to and discuss the concept only tangentially. The majority of the literature in this school is derived from secondary sources influenced by Historicism so that, at first glance, they appear to be barely intellectual second cousins. But these accounts are all derived from the same assumptions, even if the author is ignorant of his or her place on their family tree. The central assumptions of Historicism are that the flow, the progression of history can be understood as a singular, coherent movement toward the rational end of history, its telos. This telos, which Reason guides through time, can be understood by great men – Hegel calls them world-historical men, heroes of an era – and acts as a guide for their actions as they help move mankind toward the end of History. Woodrow Wilson’s political writings offer significant insight into the initial arrival of Historicism in American political thought and its integration into the Progressive critique of the Constitution. Wilson rejected the idea that theory and philosophy could produce a rational account of democracy, and looked upon American democracy’s foundation in revolution – in contrast to British democracy’s historical evolution – as evidence of its illegitimacy. Writing on the modern democratic state, Wilson explains that 70 Wood, Representation in the American Revolution, 77. 49 history is the only proper, rational foundation upon which democratic government can be founded: The historical view of government is in any case the only fully instructive view; in the case we are considering – the case of history’s latest political fruit, democracy – it is in the only view not utterly barren. Only history can explain modern democracy to itself or to those who would imitate it.71 This movement to history as the proper foundation for political institutions has the same effect as Wood’s reading of representation as a transcendence of classical regime structures, but the consequences of this account are significantly more expansive than the democratic revolution Wood portrays. As Ronald J. Pestritto explains, “[i]f we cease to understand our democracy as one founded on timeless principles and instead adopt the evolutionary conception of democracy, we free ourselves to make fundamental institutional alterations.”72 Fundamental institutional alterations are precisely what Wilson’s political project envisions, but these alterations do not stop at abolishing Aristotelean forms of mixed government, or Montesquieuian and Lockean accounts of separated powers. They reach down to the basic elements of society. “The thesis of the state socialist is,” Wilson explains, “that no line can be drawn between private and public affairs which the State may not cross at will; that omnipotence of legislation is the first postulate of all just political theory.” Where Wood presents an account without natural rights in order to advocate for utilitarian majority rule, Wilson excludes natural rights as antithetical to the basic ends and power structure of historical democracy. “[I]t is very clear,” Wilson continues, “that in fundamental theory socialism and democracy are almost if not quite one and the same. They 71 Woodrow Wilson, The Papers of Woodrow Wilson, ed. Arthur S. Link (Princeton: Princeton University Press, 1966-1993), 5:65. 72 Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham: Rowman and Littlefield, 2005), 49. 50 both rest at bottom upon the absolute right of the community to determine its own destiny and that of its members. Men as communities are supreme over men as individuals.”73 This breaking down of the barriers between social and political power does share some initial similarities with the Anti-Federalist efforts to make government mirror society through democratic rhetoric, and Wood is correct to highlight this small degree of continuity between Anti-Federalist and Progressive political theory, but again, the ends of the two theories are so different as to almost be polar opposites. “For this democracy – this modern democracy,” Wilson proclaims, “is not the rule of the many, but the rule of the whole.”74 The relationship of representation that Wood identifies from history – the people being reflected in every aspect of the regime structure – is inverted in Wilson’s Historical account – power and unity of purpose being re-presented to the people through the government. This new end explains why Wilson rarely mentions representation and focuses significant energies on the idea of leadership. Democracy in this Historical account is not a regime that needs a substitution of a few for the many in order to be legitimate or practical. It is a product of History, practicable because men – even human nature – have changed, become better through time, and it is a regime in need of a leader to guide it toward where Reason says it should go. Beyond asserting a maturation of human character over the childishness of human kind in the past, the character of the people matters little. Representation is not a substitution of the people into the government, but an instantiation of will – the historical leader’s will – into government and then re-presented to the people. 73 Woodrow Wilson, “Socialism and Democracy,” Woodrow Wilson: The Essential Political Writings, ed. Ronald J. Pestritto (Lanham: Lexington Books, 2005), 78. 74 Woodrow Wilson, The Papers of Woodrow Wilson, 5:76, emphasis in original. 51 Beyond Wilson’s writings, it is difficult to find an author that specifically advocates for an Historical reading of representation because the question of what representation does is more often answered by the assumptions of the argument, rather than the fragmentary and tangential moments when representation itself is explicitly discussed in such accounts. Wilson certainly offers a full-throated account of History and democracy, but the school as a whole rarely presents a cohesive account beyond the basic assumptions of Historicism and therefore some degree of distrust in classical regime forms, and the unwavering, but not necessarily stated, assertion that representation is a matter of will. Searching through significant portions of contemporary democratic theory to find the off-hand remarks, scraps, and fragments that speak directly to the question of representation and will in the Historicist accounts will take us far afield from our present efforts to understand what political science knows about representation and how it came to know it. Therefore, the most coherent exposition of the Historicist arguments are found in the works of its critics, who must first uncover and unpack the Historicist assumptions before being able to make their own arguments in full. Harvey Mansfield argues that the central assumption of the Historicist school, a set of assumptions so diffuse that he merely calls it “scholarly opinion,” that representation is a medieval inheritance rather than a modern artifice, is false. Mansfield’s argument raises two significant questions: what was medieval representation, and why is the asserted continuity between medieval and modern representation necessary to Historicist claims? Mansfield approaches the first question with an exploration of secularism and divine right which, for the purposes of this inquiry, need only be discussed insofar as these concepts explain the relationship philosophers of each period had with their intellectual forebears. “Medieval thinkers present their thought as an improvement on ancient thought by virtue of Christian, Muslim, or Jewish 52 revelation, but they never repudiated ancient thought. Their great problem is how to reconcile revelation with Greek philosophy.”75 Hobbes and Locke, in contrast, reject this reconciliatory methodology and seek to create something altogether new in one stroke that comprehensively destroys any claim to rule by divine right and sets modern government on a secular trajectory. In short, Mansfield shows, before we even arrive at a definition of what medieval representation is, we can see that the ideas that lie at the heart of both medieval and modern representation are fundamentally opposed. Divine right remains of primary importance as we transition from Mansfield’s theoretical approach to one more focused on the practice of the era: what was being represented in medieval representation? Cam’s question, a foundational piece in her study on the history of medieval representation looms large here, and the confusion it causes in looking back on the origins of representation must be clarified. “Don’t all talk at once – who will speak for you?” presents such a simplistic and easily identifiable example of substitutive representation that, “[w]ith this origin, representation loses its special character entirely,” Mansfield explains. [O]ne could find it not only in medieval times but in antiquity, not only in the ancient confederations but in the cities themselves. Even the difference between representation and “direct government” would disappear, since the assembly of a “direct government” could not proceed unless it prevented all from talking at once and required one to speak for many.76 However, the mechanism Cam describes is not only too simplistic to provide any practical insight, it also shows a representation completely devoid of popular origins and whose power is focused in the opposite direction from any account of representation post-Hobbes. In its earliest 75 Harvey C. Mansfield, “Modern and Medieval Representation,” Representation, eds. J. Roland Pennock and John W. Chapman (New Brunswick: AldineTransaction, 1968), 64. Hereafter MMR. 76 Mansfield, MMR, 78. 53 instantiations, representation appears more as an administrative tool that allows a non-present king to have his power and authority represented throughout the realm. This is a form of representation in a substitutive sense, but even on those grounds this form of representation is not an example of accidental representation because it is the king’s power being represented to the people. The people have no claim to rule.77 Following the Magna Carta, up until the Glorious Revolution of 1688 wherein Parliament declared itself sovereign against the King’s claim to Divine Right, a number of legal rights, commonly called the rights of Englishmen, where successfully developed and claimed against the crown, which required the consent of those whom the law would affect before the King could act. But as Mansfield explains, this is not consent in the modern sense: Every government has the problem of consent, and many governments seek consent by offering offices to members of the groups whose opinion they find valuable or indispensable. Medieval representation used such “representative machinery” to secure consent. But “representative government” is government that uses representative machinery because it is authorized solely and entirely by consent. Consent in modern representation is not a question of utility or political expediency, it is the foundational component of legitimacy. Strictly speaking, only modern representation amounts to “representative government.” The medieval phrase from Roman law, Quod omnes tangit ab omnibus approbeteur, illustrates the difference. “What touches all should be approved by all” is merely permissive and implies that some matters do not touch all and need not be approved. In any case, the initiative is with the Crown. In modern representation, the initiative is with the people who consent to government and who may thereby consent to the use of prerogative by a king or 77 A shepherd watching over his flock, or more precisely the sheep being watched over by a shepherd, is not a model of representation. See Plato’s Republic, book 1. 54 president. Because modern representative government is limited, its every act must be authorized.78 Against Cam’s spokesman model of representation, it is clear that even in the most populargovernment-friendly examples that history has to offer, the people’s claim to political power and their place in representation were significantly different under medieval representational theory. Neither can this gap between medieval and modern be bridged by arguing that the difference between the two is found in the liberty of the people, not the representational mechanisms and institutions.79 The difference is not that modern representation is discretionary and medieval mandated; it is in the understanding of the people being represented. The modern debate assumes that the people are a whole to be represented by their government, while the medieval debate assumes that the people are a part to be represented to their government.80 Modern representation is fundamentally different in its scope, direction, authority, and purpose from medieval representation.81 78 Mansfield, MMR, 78-79. Max Weber made one such argument, and Mansfield indicates that a portion of such an argument can be derived from Kant. It is not an uncommon assumption throughout the literature. 80 Mansfield, MMR, 79, emphasis in original. 81 As a practical, historical example, the Revolutionary-period claim of “No taxation without representation” was central to the colonists claims of being unjustly treated, of having their rights as Englishmen violated (see Murray Dry’s dissertation). The arguments used in favor of virtual representation – that the colonists were in commerce and their interests were already represented in Parliament – are medieval arguments. The source of sovereignty is not the people, but Parliament. Therefore, since their interests are already represented there, they lack status for any further claim. The American colonists rejected this medieval understanding of their right to representation and made a much more expansive claim to natural rights, as the opening paragraph of the Declaration of Independence makes clear: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth [not divine right], the separate and equal station to which the Laws of Nature and of Nature's God entitle them [here the claim is to a divine right of natural equality, not of one man to rule], a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. (brackets are my own) The American claim to a new government was not to make a new British model that was closer and more reflective of their interests, or (by the time of the revolution) that American Parliamentary seats would have 79 55 The failure of medieval theory and practice to uphold the Historicist claim to continuity provides several important insights into the common structure of that argument. First, the Historicist accounts rely on the simple theories derived from historical studies like Wood’s and Cam’s that provide a plausible, utilitarian framework without any competing assumptions. Second, the Historicist accounts rely almost exclusively on Pitkin’s dismissal of Hobbes and follow her lead in ignoring the existence of Locke as a source of representational theory. Both Hobbes’s and Locke’s clear break with medieval thought to create a new basis for political power, and Hobbes’s ability to show that while representation requires some democratic elements, it does not in and of itself create the grounds for any claim to continued consent, are two of many potentially fatal challenges to the Historicist claim of continuity in the historical development of representation and democracy. Though the evidence commonly cited by the Historicist school has been shown to be false and incomplete, the question remains, why is this claim of continuity so important to their argument? As we see in Wood’s account, even though the divide between medieval and modern is not clearly defined – his reading of the Constitution reads as a compromise between several competing factions, virtual/actual, past/future, aristocratic/democratic – he never needs to make a claim to continuity in order to reject classical political philosophy. Even though this portion of Wood’s argument matches the ends of the Historicist account, it fails, in Historicist eyes, to go far enough. In providing evidence for his thesis that actual representation developed during the Revolutionary era as a rejection of virtual representation, Wood never argues that any change in been sufficient. The claim was for a fundamental rejection of the British representational model and conception of sovereignty and the making of something altogether new. See also Michael Zuckert, The Natural Rights Republic (South Bend: University of Notre Dame Press, 1996). 56 human nature took place – an essential component of the Historicist argument. In fact, the people in Wood’s account appear quite willing to be motivated by self-interest in the development and pursuit of their political arguments, and in this manner present a view of human nature not dissimilar to ones provided by Hobbes and Locke. In classical and modern accounts of political philosophy, human nature is understood as a fixed constant, and one of the first tasks a philosopher, founder, legislator, or any other political actor must undertake is to gain a knowledge of that nature. Historicists reject the claim of a fixed human nature and argue instead that man is an historically perfectible being – mankind’s nature will become better as it approaches the end of History. In The Philosophy of History, Hegel introduces this argument and gives an historical account of the development of human civilization as evidence of this improvement in mankind over time. Because this improvement can only be seen over time, and the Reason of it understood in terms of the final end of History, any account of a fixed human nature must be rejected. In order to support this argument, history must appear as one continuous, rational flow from beginning to end that displays the Reason guiding History to its telos. The origins of government then must be organic, a product of historical development, and not an artificial, human creation. It is, for these reasons, Mansfield explains, that Hegel expresses appreciation for the medieval estates. Whereas, according to Hobbes and Locke, individuals were represented in one sovereign artificial collectivity made at one stroke by laws of reason to be found in human nature, now for Hegel men developed their rationality in several collectivities which could no longer be called “artificial” because of their function in making or developing what had been called “human nature.” Further, since the sovereign or the public cannot be made at once, it must be developed in parts: the Estates are one part between government and particular men. The existence of the 57 Estates guarantees that the government has in fact something to represent: a people formed into a public.82 Whatever form these estates might have taken – clergy, nobles, commoners, etc. – they were being represented to the government, not by it. However, the direction of the mechanism does not undermine Hegel’s understanding of what History is doing. It is sufficient that the historical origin of the mechanism be connected in some form to the progress of Reason, and then the mechanism can later be re-appropriated, rendering the direction of the representation irrelevant: “[b]y serving as the medieval contribution to human freedom, representative government was useful to the opinion that man has a history rather than a fixed nature.”83 The successful re-appropriation of representation is essential to Hegel’s account of the development of human nature because it shows man as an unwitting character in his own development, a development that is natural, reflective of the inherent, but not self-consciously known, qualities of man. By linking the origin and development of government to the organic development of man through the progress of civilization, both the nature of man and government are capable of being led to perfection. Now representative government is necessary to this conception because it is government that represents or reflects something else, culture or society. As the derivative of culture or society, it purports to be government by inattention, unaware of itself, pursuing no end of its own, following the end or ends of its author or master. To be sure, every society needs to be led, but no society can be formed to reach a state of history that is not implicit in itself.84 82 Mansfield, MMR, 58. Ibid. 84 Mansfield, MMR, 59. 83 58 This implicit reflective claim is the essential source of the Historicist understanding of the scope and ends of political power. Against modern claims for limited government based on a timeless understanding of human nature, Historicists claim an ever-expanding and always benign conception of human nature. To the opinion that man has a history rather than a fixed nature the idea of a break in history is intolerable. A break would destroy the continuity of human creation whose completion alone makes possible any survey of human history: to see a break in human history would be to admit that man does not make himself. If man can recover himself and rebuild his civilization after a break in history, then he must be able to rely on his nature or on divine aid. He must be by nature, not merely through history, capable of knowing himself.85 In short, a break in the asserted continuity between medieval and modern representation destroys the grounds for every other assumption made by the Historicists. The necessity of this assumption to the survival of all others also explains a great deal about the structure of the literature which, with the exception of David Runciman’s effort to argue that Hobbes was a proto-democrat, universally reviles Hobbes and fails to take his claim to have discovered representation seriously, and ignores Locke’s contribution to the theory of representation altogether.86 The American revolution is more easily explained as a world historical moment in the progression of human freedom than as the instantiation of something altogether new, in both theory and practice. These assumptions and the priorities that follow from them – an unwavering focus on the reflectiveness of representation and a constant concern for the character of the representatives, because they must fulfill the leadership role - explain the bulk of modern representative studies. 85 Ibid. David Runciman, “Hobbes’s Theory of Representation: anti-democratic or prot-democratic?” Political Representation, eds. Ian Shapiro, et. al. (Cambridge: Cambridge University Press, 2009), 15-33. 86 59 But the universality of the assumptions does not make them any stronger; instead, it makes the entire discipline feeble and myopic, unable to evaluate basic assumptions and apt to concentrate its focus on an incomplete portion of the whole. Brian Seitz makes this exact charge in the opening pages of his work and explicitly rejects the assumptions of Historicism: [H]istorically, the subject represented in political discourse and practice has clearly not always been the same figure. There persists no self-identical political subject that gets embodied at different times and in different ways in the various forms of representative government, neither one that is essentially already constituted (and just needs a voice) nor one that is unfolding or coming into being as the body of the progressive, teleologically determined history of Reason or Freedom; the political subject is one that always appears in and is articulated by a particular regime formation. There is no universal political subject and never was (outside of a discourse), neither actually nor potentially.87 But Sietz does not turn to Hobbes, or Locke, or any other modern thinker to produce a new account of representation. Instead he draws on existential accounts inspired largely by the philosophy of Michel Foucault that circumvent the need for assumptions based in historical inaccuracies and ultimately produce many of the same conclusions. Sietz begins the first portion of his argument with an historical case study of Medieval Britain and Revolutionary America in order to explore the rationalization of legitimate representation. Sietz’s review of these historical instances of representation begins with Cam’s reductionist observation and an essentially substitutive account. However, Sietz then moves to a new question. More than asking who is being represented, Sietz asks what does the who have that gives them the claim to be represented? The Historicist accounts use the question of who to focus on the people and show a progression of human freedom through the increasing reach of 87 Brian Seitz, The Trace of Political Representation (Albany: State University of New York Press, 1995), 6-7. 60 representation. This is Reason bringing mankind to its telos. But Sietz rejects such as an inaccurate reading of history and argues that the discursive content and multiple origins of different representational accounts teach us something very different about representation: “It was not Reason at work here, but, rather, reason, which is to say the reasoning(/maneuvering) of specific “individuals,” of mostly well-to-do, white males.” Representation is not a spontaneous historical development lifting mankind up to freedom, but, rather, it is a reflection of a claim to power, a will to rule for one’s own sake in another’s name. “This observation,” Sietz concludes, is in alliance with the general Nietzchean point that it is important to know who is doing the talking (cf. Foucault; in a given complex of discourse-practice, who is authorized or in a position to make certain, specific types of statements?). “Who” here refers less to a subject position or identity in a network of power, which is always a relational position. The people who were writing about consent and about the people were not themselves the people, even if they stood in for them, spoke for them, represented them. The people doing the talking were themselves specific people, points in a power discourse, not the imaginary, potentially univocal universal in the name of whom they purported to speak.88 The history of representation is, under this new line of reasoning, simply another way of rationalizing a claim to rule, and the only unifying thread in the discursive content of representation is the instantiation of the will of those who speak for another. The second movement of Sietz’s argument, which focuses on the service of representation – an idea very similar to Pitkin’s elusive search for substantive representation, builds on this finding of will in representation and offers an existential response to Mansfield’s challenge that man cannot be self-made if there is no historical continuity in the development of representation. This portion of Sietz’s argument draws extensively on the existential assumptions and 88 Id., 58-9. 61 metaphysical claims of Foucault (Derrida’s account of self-consciousness as well) to explain how one comes to know the truth of a thing. We come to know ourselves through a mirror, which presents us with an image of ourselves that we can see and recognize as an image of ourselves, but what makes it a true image when it is also true that the image cannot be the thing itself? In following Foucault’s account of the representations of power, Sietz argues that the duality, the conflict, between a true and false image is the wrong point of focus: “The political question, to sum up, is not error, illusion, alienated consciousness or ideology; it is truth itself…legitimation is truth.”89 With the understanding that truth is relative to the image presented, or, in terms relevant to our inquiry, that a legitimized representation is a true representation because it reflects the political subjects that authorized it, we can now see the foundation of society. “The process of rationalization or legitimation I am affirming here may be associated with what Castoriadis calls the ‘institution of the social imagery,’ which is the gesture of self-creation or self founding, the institution of society.”90 Representation is a reflective, willful, and self-aware action that purports to describe a real state of affairs existing outside itself. In so doing, what it also does in the same stroke is organize that subject or object, found itself, and account for the complex of practices with which it is associated. What it does then is institute itself, bring itself into being, legitimate itself, make that kind of representation be, e.g. legitimate a way of doing political business that could not come into being or exist without the rationalizing, reinforcing architecture provided by the discourse of virtual representation.91 This willful, self-conscious representation does not offer the perfect remedy for Historicists aware of the faulty foundations of their account, but Seitz feels that there are enough similarities 89 Id., 103, emphasis in original. Id., 102 91 Id., 103-4 90 62 in conclusions that the loss of a few assumptions will not impede restructuring the intellectual foundations of their claims. Both perspectives are governed by purpose – strategy is the shadow of teleology – but “purpose” means different things for each. For teleology, “purpose” is given, objective, ultimately self-evident, even natural; picture Aristotle here. Teleology asks, “What is this thing about, what is its nature?” In contrast, strategy asks, “What is this thing for, what will it achieve, what effects will it produce?” For strategy, “purpose” is plan, something human, selective, circumstantial, and intimately wed to chance; it is the assertion of will, something like a will to power. Teleology assumes purpose. Strategy assets purpose.92 We only need free ourselves from the Historicists’ faulty “conceptual logic of the history of representation” to see the truth. Sietz’s account is philosophically challenging – certainly not written for the uninitiated. Of essence here is that what is being represented in both Sietz’s and the Historicists’ accounts of representation is will. Whether it is the will of Reason, History, the leader, or the people in certain power arrangements asserting themselves, this is will as a perfection of democratic power, so that the ends of the regime aren’t in question because the regime does not matter. We are no longer talking about citizens, but human beings, or in Seitz’s terminology, “political subjects.” Representation is simply a reduction, a reflection, a perfection of will. This essential connection of representation and will explains why modern representational literature, and Supreme Court jurisprudence, is focused almost exclusively on equating representation with voting. Wood’s account offers the simple explanation that in rejecting virtual representation as a legitimate concept, the colonists were required to open the door to the argument that everyone counts. The mathematical reasoning of this is not unconvincing, but in Seitz’s account we find that the 92 Id., 162 63 relationship between voting and representation is much more intimate than mathematics: “After the flow of images of the subject of political representation, the moment of truth – the moment the political subject emerges in one of its most visibly active roles – is the vote and tally, and vote we must.”93 It is in the act of willing of ourselves into being that representation is properly understood, and voting is the primary movement of that act. But, as we step back from the existential mirror and take account of what is in front of us and of what is outside of us, we are left with a series of unsatisfactory answers. If it is will that is being represented, why is the democratic form desirable, or necessary? What goods does a willful democracy produce that cannot be produced by a willful tyrant, even if benevolent? Any attempt to answer these questions throws us back into all the discourses of classical political philosophy and provides no insight into why Publius feels that representation is among the most important advancements in modern politics. Not withstanding the voluminous literature on representation, we are left asking why do we need representation? The accounts that offer answers to these questions – Hobbes, Locke, Madison, and significant portions of the French tradition of representation – are largely ignored, and if read, then misread. Representation is full of dualities. The simplest of these is winner/loser in the electoral context. Sietz focuses on true/false. Pitkin focuses on mandate/independence. Urbinati focuses on direct/indirect. Wood focuses on virtual/actual. The most powerful arguments in each of these cases capture representation as points on a sliding scale between two extremes, or more moderately stated, two polar opposites. But there are more dualities – individual/society, will/judgment, ideal/actual which represent the greatest duality, the theoretical/practical – that 93 Seitz, 162 64 can be discussed to great effect. Pitkin’s words ring true: if we focus on one aspect then the character of representation will necessarily change. Representation is a concept that is as expansive as it is pliable. It is substitution, reflection, symbolism, reduction, action, and more – all at once. Broad theoretical accounts then may succeed in telling us what is being represented in only the most general of senses. To understand representation as Publius does, we must change our standard of judgment from theory broadly to political practice particularly. This is the defining characteristic of the essential accounts of representation; in order to understand representation, we have to understand the assumptions upon which representation is operating and the ends to which it is directed. This should not be understood as a rejection of theory as a proper means of inquiry, or a call to reduce representation studies into relativism. Because representation is necessary, but not sufficient, to good government, the ends of the regime must be considered in order to understand how representation plays a part in securing those ends. We understand that theory fails to produce singular answers – that contemporary panacea of “scientific consensus” – to a number of broad theoretical question like “What is human nature?” and “What are the ends of democracy?”; we must be willing to recognize the same degree of theoretical complexity in answering “What is representation?” Hobbes, Locke, and Madison all envision different regimes, but in understanding the ends of their regimes we can see what representation does and why it is essential to their regimes. We have already seen who and what Hobbes and Locke seek to represent in their regime, what remains is a focus on Madison’s theory of representation and its contribution to the ends of republican government. This methodology demands that we think of the most fundamental question of political philosophy – “What is justice and how do we secure it?” – in order to conceptualize representation’s role in and contribution to popular government. 65 Madison’s account, more than any other account found in the representational tradition, sees the question of representation on that grand scale and attempts to provide a solution. 66 The Institutions of Representation Presenting an account of Madison’s theory of representation in the terms of modern representational theory is, in short, impossible. Modern representational theory conceptualizes representation as the re-presenting of individuals, something that in its very assumptions reduces the theory of representation to the mirroring or scientific reduction (in a perfect mathematical sense) of the people at large to a smaller size. At its core, this concept of representation is reflective, descriptive, and unconcerned with the particulars of the regime. The central assumption is that the end of the regime is mutable – reflective of what the majority desires, and that what the majority desires is inherently just.1 This is a powerful, democratic assumption that discourages inquiry and effectively brands even the mildest dissenters as apostates to the democratic cause. The religious zeal with which this assumption is held is nothing new to political theory. Writing at the beginning of the modern republican tradition, Machiavelli observed that in popular government, “the voice of the people is as the voice of God.”2 Because of the power derived from these claims to be both inherently democratic and just, the almost singular focus of modern representational theory is to translate the will of the majority into action. Madison demonstrated a life-long commitment to popular government. Yet, even this commitment, evident throughout the historical record and his papers, is in juxtaposition with the 1 This assumption also pairs well with democratic theory and many arguments for interest group pluralism, as will be seen below. 2 Niccolò Machiavelli, Discorsi sopra la Prima Deca di Tito Livio (Torino: Einaudi Tascabili, 2000). Book I, chapter 58; 126. “E non sanza cagione si assomiglia la voce d’un popolo a quella di Dio.” 67 literature of modern representational theory that denies Madison’s democratic credentials because he does not share its central assumption on justice. Madison argues that democracy is desirable, but only insofar as it is just, and it is not inherently just. Madison is acutely aware of the eventual omnipotence of majorities in democratic government and anxious to prevent tyranny in that exercise of popular political power. For Madison, deriving the power and authority of the people through representation is the sine qua non of republican government, but in considering the possibility of a tyrannical majority, the institutions and the structure of representation are just as important as popular derivation to the health and effectiveness of republican government. The Madisonian framework of representation therefore requires an understanding of the fundamental character of the regime and its institutions, the structure of the political process, and the nature of the people who seek to rule in their own name – all ideas absent in the modern representational literature. Madison’s theory of representation is the translation of popular opinion into public opinion. The inadequacy of the representational literature to provide any account that can explain what distinguishes popular opinion from public opinion, however, does not mean that we can simply return to Madison’s original texts to rebuild his more robust framework. Moving beyond the literature on representation, where Madison is largely absent, exposes us to firmly drawn battle lines of scholarly interpretation on Madison’s intellectual and political legacy that have filled volumes and consumed lifetimes. It is impossible to enter this field without falling under a previous scholar’s standard, and it is this eventuality that necessitates a review – however brief – 68 of the history of the intellectual study of Madison’s ideas before a study of Madison’s theory of representation can be of any consequence to modern political discourse.3 Though Madison is now commonly identified as the “father of the Constitution,” this title was not one he bore during his lifetime, nor was he acknowledged as the intellectual progenitor of the Constitution by his contemporaries, even as many of them deferred to his pen.4 While Madison’s omnipresence on the national level during the early years of the republic, from his initial efforts to reform the Articles of Confederation in Annapolis in 1786 through the end of his presidency in 1817, is unrivaled,5 his thought was largely ignored in academic circles for the better part of a century, prompting Edward McNall Burns, writing in 1938, to lament: For reasons not altogether easy to understand the political philosophy of James Madison has received slight recognition. Professor Parrington, in his three volume work on Main Currents in American Thought, devotes a chapter each to John Adams and Daniel Webster, but dismisses the Father of the Constitution with eighteen casual references. Most other histories of American thought likewise give scanty attention to Madison.6 Douglass Adair, however, provides an easy to understand explanation of what happened to Madison’s intellectual legacy following his death: “it is a truism apparent to everyone who has 3 In Pitkin’s terminology, this would be a study of the Symbolic Representation of Madison. It would be too cute to title the section that, but it is telling that her study invites deep and probing insights into this theoretical account of representation but fails to explain political representation. 4 The title was originated by John Quincy Adams in his biography of Madison, The Lives of James Madison and James Monroe, Fourth and Fifth Presidents of the United States (Buffalo, 1851). I have also found a usage in eulogy on Madison delivered by Adams in Boston, following Madison’s death in 1836. See An Eulogy on the Life and Character of James Madison. Fourth President of the United States. Boston: American Stationers’ Company, 1836. See also Harold S. Schultz, "James Madison: Father of the Constitution?" The Quarterly Journal of the Library of Congress 37, no. 2 (1980): 215-22. 5 Only George Washington, Alexander Hamilton, and Thomas Jefferson can make any claim to have surpassed Madison on the national level, though only for small periods of Madison’s unrivalled career. 6 Edward McNall Burns, James Madison: Philosopher of the Constitution (New York: Octagon Books, Inc., 1968), IX. The pagination in my edition is incorrect, however, and there are two Page IXs. The page IX I reference is the first page of the original foreword. 69 reflected on American history that every generation sees mirrored in the Constitution its own deepest political interests.”7 The predominant political questions following Madison’s death were focused on federalism, executive power, judicial power, territorial expansion, and the succession of the southern states. Madison’s nuanced positions on a number of these questions do not lend themselves to the heat of partisan discourse and Madison came to be either ignored, or misread and reviled, especially on the question of succession. “Madison was still ‘father’ of the Constitution after Appomattox,” Adair observes, “but he was a parent treated with increasing disrespect – a parent to be apologized for – by the most authoritative commentators who wrote on The Federalist and the Constitution between the Civil War and the end of the nineteenth century.”8 By the start of the twentieth century, Madison had been reduced to merely the scribe of the Constitutional Convention, an accidental father in pen alone. Instead, Alexander Hamilton, the intellectual architect and engine behind the structure and administration of the Treasury Department, and everything it touched, was considered the founding father par excellence in the post-Civil War nation of industry and commerce. From this ignominious state of neglect, the Progressive economic theorist Charles Beard lifted Madison up and presented him as the antithesis of Progressive and democratic principles, and the originator of social inequality in America, or, to misappropriate Franklin Delanoe Roosevelt’s powerful political rhetoric, the philosopher of “the malefactors of great wealth.” Beard’s focus on Federalist 10, which both Adair and Lance Banning go to great lengths to show was largely ignored until Beard introduced it to the Progressive movement in the early twentieth 7 Douglass Adair, Fame and the Founding Fathers, ed. Trevor Colbourn (Indianapolis: Liberty Fund, 1998): 109. 8 Adair, 112. 70 century, was a strategic gamble that paid a number of significant dividends.9 First, the historical revisionism that had buried Madison in disdainful obscurity had lifted Hamilton’s theories of the Constitution to the forefront of American political life.10 Hamilton’s praise of an energetic executive, expansive theory of Constitutional grants of authority in the exercise of administrative power, and prescient focus on the development and regulation of industry and manufacturing could all be easily turned to Progressive ends.11 However, Hamilton’s capital systems as well as his central assumptions of separated powers and limited government are significant hurdles to the ends of Progressive theory. In short, Progressives needed to subvert the idea of limited government inherent in Hamilton’s reasoning, without repudiating his insistence on an energetic executive and the precedents of his ambitious administration. Attributing the foundation of societal ills to Madison would allow them to denigrate and disregard the form of the American regime and focus on the process and end-product of its politics. In Beard’s thesis, the American society of 1787 was undemocratic and the creation of the Constitution should be understood as an effort to ensconce the interests of the severely restricted electorate in the country’s founding law. Under this formulation, Beard reads Federalist 10 as a confessional of sorts, “the most philosophical examination of the foundations of political science,” wherein Madison openly admits that the “chief business of government, from which, perforce, its essential nature must be derived, consists in the control and adjustment of 9 Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca: Cornell University Press, 1995). 10 This would be a great book to write. Adair points to it as a discussion far too detailed to take up in his The Tenth Federalist Revisited (an understandable but lamentable habit of his) and I have not found anything that fills that gap in my research. 11 My argument here is not that Hamilton is a Progressive, but many of his policies, once his assumptions about limited government and the individual’s relation to the State (which we would roughly call the right to privacy today) are removed, they can easily be made into Progressive policies. 71 conflicting economic interests.”12 By first restricting the franchise, then removing the bulk of the people from representation, Beard argues that the Constitution effectively precludes the have nots from any portion of a government built by and for the haves. Beard’s thesis does not hold up to rigorous analysis, and it fell out of favor as Progressivism became less prominent as a popular political force, but its impact is undeniable.13 As Adair observes, in the short term it gave intellectual authority to the larger social re-definition of “conservatism” from an “adjective of praise to one of censure,” and broke the Progressive attachment to the Founding. Beard’s invocation of Madison allowed him to “wrap[] himself in the American Flag as he muckraked the motives of the Founding Fathers and, by implication, pointed to the Constitution as an instrument of class exploitation.”14 The strategy was successful; Progressive leaders would never again utter, as the great Progressive President Woodrow Wilson had, “Ever since I have had independent judgements of my own, I have been a Federalist.”15 In the long term, Beard’s thesis raised Madison out of intellectual obscurity and demanded that economic theory be the philosophical key to the whole Constitution. This historical arc and intellectual demand are most visible in the seminal works of democratic theorist Robert Dahl, who abandoned Beard’s economic thesis but maintained his focus on Madison and Federalist 10.16 Instead of conceptualizing political conflict as one of class 12 Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan Co., 1913), 156. 13 Robert E. Brown offers a compelling rebuttal of all the statistics central to Beard’s claim that property restrictions disenfranchised the majority of potential voters in Charles Beard and the Constitution: A Critical Analysis of “An Economic Interpretation of the Constitution” (New York: Norton Library, 1956). Douglass Adair’s The Tenth Federalist Revisited (in Fame and the Founding Fathers, 107-131) offers a comprehensive, theoretical rebuttal of Beard and his reading of Federalist 10. 14 Adair, 123. 15 Adair, 117; Woodrow Wilson, Letter to Albert Bushnell Hart, June 3, 1889, as quoted in Adair, 116. 16 A review of Dahl’s corpus found Beard conspicuously absent from any discussion of the theoretical development of Dahl’s thesis. The only in text references to Beard I found (in Pluralist Democracy in the United 72 struggle, Dahl argues that political power must be understood in terms of varied and conflicting interest groups and associations channeled through a process of individual consent. To explain this pluralist process, Dahl redefines Madison’s concerns about majority tyranny and majority faction in such a way as to render them meaningless.17 In neutralizing what Madison identifies as the overarching threat to popular government (faction), and comparing Madison’s concern with faction to Hobbes’s low account of human nature in a constant state of war (read: factious conflict), Dahl can dismiss all of Madison’s methods – constitutional, institutional, structural, etc. – and focus on the processes of maximizing majority rule.18 In short, for Dahl, all of Madison’s constitutional innovations are unnecessary since the problem they are designed to remedy does not exist. Dahl uses this argument as a pivot from faction to consent, which he calls the mirror image of the same problem.19 Because there is no possibility of majority faction (majority rule is inherently just in Dahl’s formulation), counting consenting individuals and removing impediments to the exercise of their will is the work of political science. Gaining the consent of an individual requires a focus on the political process, the development of his opinions, and his political, social, and economic capital. Unlike Madison’s response to faction, States: Conflict and Consent) simply identify him as an historian of the period, with one passage (not included in the index) mentioning some damage done to Madison’s reputation. The remainder of the few references to Beard are left in footnotes. 17 Robert A. Dahl, A Preface to Democratic Theory: Expanded Edition (Chicago: University of Chicago Press, 2006), 4-33. 18 Robert A. Dahl, Pluralist Democracy in the United States: Conflict and Consent (Chicago: Rand McNally and Company, 1967), 5-7. At several points in his most direct argument against Madison, Dahl argues that Madison not only tried to create a parliamentary system, but would theoretically be more at home in one, than what the Constitution created. This argument takes a great deal of obfuscation and cherry-picking of evidence, but most of all, the hypocrisy of the argument is most damning. Dahl makes of number of these observations as he is reflecting on the impact of and the changes in his thinking over the 50 years since the first publication of A Preface to Democratic Theory and he seems acutely aware of the changes that have taken place in his thought at the same time he denies Madison the same grace and humanity, demanding a rigorous and static state of thought of Madison. 19 idem, 13. 73 which requires institutional arrangements that separate powers and distinguish claims to authority in addition to varying interests inherent in a large society commonly identified as pluralism, Dahl’s principle of “Political Pluralism…draws strength less from the Constitution than from ‘politics,’ less from laws than from social and economic forces, less from officials than from citizens.”20 This method creates a more democratic form of consent, something more “grassroots” or “organic” in contemporary political terminology, than aristocratic advocates at the Founding or Schumpeterian theorists since can claim.21 This provides the basis for Dahl’s treatment of representation as a process distinct from institutions and political structures, which allows democratic theory to shed a number of problematic Progressive assumptions while maintaining the ultimate criticism that “Madisonian democracy” allows minorities to rule and deadlocks the machinery of democratic governance.22 Martin Diamond’s pluralist reading of Madison’s work begins with the premise that The Federalist can and should be read as a coherent whole.23 In fact, Diamond pushes this reasoning so far that it collapses Madison, Hamilton, and Publius all into one character – a rhetorical decision of great utility, but one that obscures the distinct character of each author. However problematic, this simple assumption, in contrast to Beard’s incomplete reading of Federalist 10, or Dahl’s admonition to his readers to not cite the “polemical and propagandistic” arguments of 20 idem, 41. The essence of Schumpeter’s thesis is that elections exist as a mechanism for the people to choose elites who will then form the policies that will direct society. This elite-driven model only allows the people to choose their leaders, but once that consent has been exercised, the people’s only remaining act of participation in politics is to follow the decisions of their leaders. 22 Dahl’s criticism of Madison is more circumspect in his later academic works, but his ultimate summation that Madison’s theories are undemocratic remains firm. 23 The distinction takes a stylistic shape as well, with adherents of Diamond’s unified thesis calling the work The Federalist, while Dahl, et. al., call the work the “Federalist Papers.” Quotation marks are Dahl’s. I don’t intend to read too much into this (since I prefer The Federalist Papers), but the pattern of different formats on either side of the intellectual argument is amusing. 21 74 the Federalist Papers at all, maintains the centrality of Constitutional limits to the structure and authority of political institutions which Dahl and other democratic and Progressive theorists use pluralism to dismiss.24 “Madison’s whole scheme essentially comes down to this,” Diamond explains, in a passage worthy of being quoted at length: The struggle of classes is to be replaced by the struggle of interests. The class struggle is domestic convulsion; the struggle of interests is a safe, even energizing, struggle which is compatible with, or even promotes, the safety and stability of society. But how can this be accomplished? What will prevent the many from thinking of their interest as that of the Many opposed to the Few? Madison, as I see it, implies that nothing can prevent it in a small democratic society where the many are divided into only a few trades and callings: these divisions are insufficient to prevent them from conceiving their lot in common and uniting for oppression. But in a large republic, numerous and powerful divisions will arise among the many to prevent that happening. A host of interests grows up “of necessity in civilized nations, and divide[s] them into different classes, actuated by different sentiments and views.” “Civilized nations” clearly means here large, commercial societies. In a large commercial society the interest of the many can be fragmented into many narrower, more limited interests. The mass will not unite as a mass to make extreme demands upon the few, the struggle over which will destroy society; the mass will fragment into relatively small groups, seeking small immediate advantages for their narrow and particular interests.25 This is a complex and expansive argument that destroys Beard’s reading by arguing that Madison anticipated and refuted it by prioritizing interest over class, and lays the foundation for the intentional development and multiplication of interests as a beneficial public policy. Even more, Diamond’s reading of pluralism is not only about an expanded sphere, but also about political economy. Pluralism shapes the political landscape as much as the economic landscape; it 24 Dahl, A Preface to Democratic Theory, 9, fn 12. See also, Robert A. Dahl, How Democratic Is the American Constitution? (New Haven: Yale University Press, 2003), 63-4. 25 Martin Diamond, As Far as Republican Principles Will Admit, ed. William A. Schambra (Washington, D.C.: The AEI Press, 1992), 33-4. 75 demands a “profoundly democratic” society where all men26 are free to pursue their “immediate interest (perhaps immediate gratification),” and the commercial economy must be advanced, energetic, and capable of producing real, tangible economic gains for the fragmented interests, “else the scheme would cease to beguile or mollify.”27 Ultimately, this understanding of pluralism defines the ends of the regime, rendering a low, but stable and peaceful regime filled with men continually striving after immediate private gains who have no need for grand ideas or great statesmen - even the most enlightened rulers are animated by “opposite and rival interests,” which cancel each other out as another low, but reliable, remedy to “the defect of better motives.”28 Diamond’s work provides a demonstrative account of Madison’s commitment to democratic government that must be addressed by those who would prefer to dismiss Madison as a bastion of anti-democratic thought. However, serious questions remain about whether Diamond properly captured the whole of Madison’s thought in a way that Madison himself would find satisfactory. Diamond’s assumption that The Federalist should be read as a coherent whole colors all his logical extrapolations, especially his argument that Madison seeks to wholly remove questions of virtue from the regime and replace virtue with interest alone. Only one objection to this assumption is necessary for the present argument: the assumption that The Federalist should be read as a whole and referring to other source material are not mutually exclusive. The idea that exclusion of the rest of Madison’s writings is acceptable at the same time 26 Post-modern sensibilities demand ungendered modifiers like persons or human beings to capture the expansive meaning which has always been inherent, though gendered, in the word men itself. I maintain the traditional English (and Latin, before that) usage here. 27 Diamond, As Far as Republican Principles Will Admit, 34-35. 28 Federalist 51, as quoted by Diamond, As Far as Republican Principles Will Admit, 57. 76 that one argues for a comprehensive and cohesive reading of The Federalist as the whole of Madison’s theory, should be as risible as it is methodologically and intellectually inconsistent. However, this idea – that the whole of Madison’s thought is sufficiently expressed by Publius – is firmly established not only in the scholarship of The Federalist, but of the Founding itself. Why are thousands of pages of derivative scholarly articles on the eight pages Madison wrote in Federalist 10 consistently consulted by scholars while the rest of his work remains largely ignored? The answer seems to be a consequence of the historical treatment of Madison’s thought and its place in American political development. After the Progressives successfully removed the theory of American government from its moorings in the principles of the Constitution, and the Democratic theorists continued the movement, to say nothing of the simmering international conflict between American conceptions of natural rights and liberty versus Communism, the necessity of defining and returning to those Constitutional principles as the basis of a successful counter-argument was obvious. Up until this point, everyone seems to have recognized some degree of distinction inherent between the thought of Madison and Hamilton – indeed, recognizing this distinction was an essential part of the Progressive’s success. However, this new counter-argument called for more intellectual force than a divided Hamilton and Madison could easily provide. It called for uno solo, and that one alone was, by default, Publius. This turn to Publius as the comprehensive key for understanding Madison’s political theory was facilitated by two enduring factors. First, again, the historical treatment of Madison’s thought has removed significant portions of his writings from scholarly texts used for both basic teaching and higher order research. Second, there has been a long-standing challenge of intellectual inconsistency levelled against Madison, even during his own lifetime and long after he and Hamilton transitioned from allies to adversaries during the early administrations of the 77 new republic. Madison always rejected this charge, insisting that he had always pursued a consistent course in his political thought and practice.29 Consistent, perhaps, but not linear, which adds the type of complexity that easily obfuscates true motives and gives fodder to both sides. As Banning notes, [m]ost political histories of the New American Republic attribute Madison’s reversal to the pressure of the moment, as did most of his contemporary critics. Most of Madison’s biographers deny that he was moved exclusively, or even mainly, by political considerations. “In order to preserve consistency” in defense of freedom, one biographer insists, Madison revised his views about the powers that could safely be confined to the new regime. Consistently associating liberty with the perpetuation of the Union, another analyst suggests, Madison detected different dangers under different conditions and changed his mind about the policies and constitutional constructions most consistent with his fundamental ends. But even most authors who insist that the Virginian’s course was deeply principled throughout agree that it was curiously twisted.30 The restriction of what counted as Madison’s political theory to The Federalist removes this curiously twisted controversy from the question of political philosophy and relegates it to the merely political and triflingly academic, and the historical neglect of Madison’s other writings offers tacit consent to this new reading of The Federalist as inclusive of all of Madison’s political theory. Thus the historical factors and exigencies, coupled with Diamond’s logical rigor, contributed to an almost unchallenged acceptance of Diamond’s central assumption that the whole of Madison’s thought is circumscribed by Publius.31 In the larger flow of the treatment of 29 James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, Gaillard Hunt, ed. (New York: G.P. Putnam’s Sons, 1900). Vol. 9. 9/30/2016. http://oll.libertyfund.org/titles/1940; letter to N.P Trist, December 1831; letter to N.P. Trist, September 27 1834, 9:471-77. 30 Banning, The Sacred Fire of Liberty, 3. 31 This argument, I believe, is very different from arguing that The Federalist should be read as a cohesive whole. I believe it is easy to find Publius internally consistent while at the same time acknowledging that The 78 Madison as an historical figure, this has had a significant impact. In identifying Madison with the strength of Publius’s arguments, the honorable titles of statesman, philosopher of the Constitution, and Founding Father have all been returned to Madison – he is no longer a mere scribe, but they have been returned to Madison with praise for the political economy of an energetic national government and a commercial society, with a nod to the prescient identification of the importance of pluralism in an extended sphere of governmental influence. Save for the nod to pluralism, this is the same praise heaped upon Hamilton, and it has led some scholars to challenge the “Hamiltonian Madison” created by the arguments of Diamond, his students, and his critics.32 Even when the challenges to Diamond’s reading of Madison did come, they were, for the better part of a decade, initiated almost exclusively by historians before political scientists began Federalist encapsulates neither the whole of Hamilton’s nor Madison’s thought. Going even farther, the voluminous secondary literature seems to assume that The Federalist is not exhaustive in its explication and defense of the Constitution, so how can it contain the whole of either man’s thought? I find the almost singular focus on Federalist 10 baffling, especially in light of the preponderance of writing Madison scrupulously saved, and the professed preference for original texts of most political philopsphy students trained with Straussian methods. My only reasonable explanation for the singular focus on Federalist 10, and if more expansive, then The Federalist alone, is that it was (and, by and large, still is) a product of their professional training. This is evidenced largely by the counter-arguments to Diamond developing first from history journals before being taken up again by serious students of political theory. But even then, the field as a whole has not accepted the counter arguments with open arms: The best article on the development of the counter-argument to Diamond as it pertains to representation is Alan Gibson’s “Impartial Representation and the Extended Republic,” which is found in the journal History of Political Thought, cited below. This journal is neither widely read, nor circulated, and was created to give a space to research that, as their masthead states, “lacks the gravity” that the dedicated disciplines like to see in their journals (I mean that as no disrespect, as my work is certainly a compatriot in no man’s land, and I would like to thank the Honnold research librarians for all their hard work in helping me find a library with a hard copy of this article). Gibson’s “The Commercial Republic & the Pluralist Critique of Marxism: An Analysis of Martin Diamond’s Interpretation of ‘Federalist’ 10,” published in Polity, was answered with a mix of probing, though rhetorical, questions and “you aren’t Straussian enough to understand” objections. See Jefferey Leigh Sedgwick, “Martin Diamond’s Interpretation of ‘Federalist’ 10: A response to Alan Gibson,” Polity, Vol. 25, No. 4 (Summer, 1993), 529-36. 32 Lance Banning, “The Hamiltonian Madison: A Reconsideration,” The Virginia Magazine of History and Biography, Vol. 92, No. 1 (Jan. 1984), 3-28. 79 building on these arguments.33 These readings of Federalist 10 were informed more by the history of ancient Rome and classical republicanism than the liberal philosophical tradition, which, as Alan Gibson explains, produced four primary challenges to pluralist accounts like Diamond’s or Dahl’s: first, Madison explicitly identifies faction and interest as deleterious to the republic, thereby rejecting the modern assumptions which have legitimated interest group politics; second, Madison defines the common good as “an independent and object standard” which is the basis of adjudicating between a factious and a just majority, and not as the accidental aggregation of interest group preferences in Congress; third, Madison rejects the conception of representatives as social mirrors or “mere brokers of interests of their constituents,” advocating instead for “a republican tradition which stresse[s] that the citizenry should be deferential to socially established élites and that these élites [are] capable of exercising disinterested political leadership”; lastly, Madison hoped that legislation would be developed through a deliberative process which constantly referred to the common good for its bearing, not the pluralist mechanisms of bargaining, coalition building, logrolling, and horse trading.34 Taken as a whole, this republican line of thinking presents a potent counter-argument to the pluralist reading of Madison and offers theoretical grounds which distinguish Madison from Hamilton, or more properly stated, remove Madison from Publius’s shadow.35 However, even though these historians and the political scholars who would build upon their research use a wide variety of 33 With the exception of Robert Morgan, “Madison’s Theory of Representation in the Tenth Federalist,” Journal of Politics, XXXVII (1974), 852-85, all the objections were developed by historians. Gibson offers an exceptional bibliography, see “Impartial Representation and the Extended Republic: Towards a Comprehensive and Balanced Reading of the Tenth Federalist Paper,” History of Political Thought, Vol. 12, No. 2 (Feb 1991), 263-304; 266, fn10. 34 Alan Gibson, “Impartial Representation and the Extended Republic." 35 A secondary problem created by this misrepresentation of Madison’s thought is that it also misrepresents Hamilton’s thought. Hamilton envisioned national unity arising out of an energetic administration, not a multiplication of interests. 80 texts to build the background for the controlling assumptions of their arguments, their readings and textual analyses remain focused almost singularly on Federalist 10. Alan Gibson’s work, in both identifying these arguments as a single school of thought and focusing the various arguments into a coherent whole, looms large at this juncture. Gibson argues that Diamond’s reading of Madison is a pluralist anticipation and critique of Marxism. This argument places Diamond’s work in the context of the Cold War, with Western liberalism and capitalism pitted against Communism in a battle of good versus evil that needed to defend ideas as much as borders, and explains the ardent focus between liberalism and political economy and the success of the American regime. However, in developing an account of America as low, but solid, Gibson argues that Diamond’s primary focus on the proliferation of differing interests and exclusion of virtue denies Madison’s intellectual depth and theoretical complexity. Charles Kesler offers a more expansive critique: Diamond’s focus on interest exiles political philosophy and lowers republicanism from an essential political form, with its own implied ends and inherent virtues, to “a valet for liberalism, the obedient and invisible servant of interest-group pluralism.”36 Gibson’s identification of Diamond’s over-emphasis of Madison’s liberalism and the corresponding rise (and ultimate over-emphasis) of the republican counter-arguments of virtue and common good highlight another complexity in interpreting Madison: not only the historical treatment of the man himself changes the reading of his text, but interpretations are also greatly influenced by the felt necessities of the times. This historical complexity, again, invites the reader to engage the rest of Madison’s work to uncover Madison’s untarnished political thought. Gibson’s footnotes are filled with references to Madison’s letters and several of his more focused 36 Charles R. Kesler, “Federalist 10 and American Republicanism,” in Saving the Revolution: The Federalist Papers and the American Founding, ed. Charles R. Kesler (New York: The Free Press, 1987), 18. 81 theoretical texts, but those texts never appear in the text of Gibson’s argument. Gibson, like so many scholars before him, still relies on Federalist 10 to make the bulk of his argument. Part of this can be understood as a methodological problem induced by the constraints of the existing literature: Gibson is arguing against the existing framework, which was created almost exclusively from Federalist 10, so using the foundational text as a refutation of the pluralist argument would be a strong rhetorical tool - if it worked. It does not work. Though Gibson is clear in his rejection of pluralist assumptions, he nevertheless leans too heavily on the “Extend the sphere and you take in a greater variety of parties and interests” line of Federalist 10 to prove his thesis. This effort to reinterpret the textual stronghold of pluralist accounts requires Gibson to repeatedly emphasize the anti-pluralist portions of his argument to the detriment of any theoretical nuance in the presentation of his conclusions.37 His thesis, that Madison’s argument for an extended republic is meant to reconcile impartial representation with popular sovereignty, points to the complexity inherent in Madison’s thought and invites us to reflect on the latent conflicts in a political theory deeply influenced by both liberalism and republicanism. Unraveling this conflict seems to explain many significant distinctions between the liberalinspired pluralists and the republican-inspired advocates of impartiality, namely that Madison is not arguing for the multiplication of interests, like Diamond concludes, nor does he overemphasize the importance of expanded electoral districts contributing to impartial representatives, as Gordon Wood and Garry Wills do. However, Gibson passes over this theoretical conflict that his review of the literature unwittingly reveals, and focuses instead on the sheer size of the republic. “Extent of territory,” Gibson explains, 37 Federalist 10, 78. 82 was the primary mechanism which Madison believed would promote the impartial resolution of factional disputes and protect individuals’ rights. Extent of territory was central to impartial representation because greater space, greater number of citizens, greater variety of interests and civic or public consciousness that were present in the extended republic would help prevent majority factions from forming and coordinating the election of a majority of interested representatives. Preventing an interested majority from gaining control in Congress in turn provided protection for the rights of individuals and minorities.38 Madison’s argument, in Gibson’s summation, hinges on size; everything else – including varied interests and disinterested representatives – becomes derivative. Gibson’s account as a whole repays careful reading, and has much to recommend, but his understanding of Madison as presented in his own conclusions simply cannot be true; Madison’s own writings reject the idea that size is an unqualified good. Madison’s Party Press Essay, “Public Opinion,” succinctly proves this point: The larger a country, the less easy for its real opinion to be ascertained, and the less difficult to be counterfeited; when ascertained or presumed, the more respectable it is in the eyes of individuals. – This is favorable to the authority of government. For the same reasons, the more extensive a country, the more insignificant is each individual in his own eyes. – This may be unfavorable to liberty. Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty, where these may be too extensive.39 An expanded sphere is not an unqualified good; it can be too extensive and unfavorable to liberty if size alone is the maximized variable. The operations within the sphere must be properly constituted to provide the necessary benefits to the republic, and as such it cannot possibly be the 38 Gibson, “Impartial Representation and the Extended Republic,” 270. James Madison, Writings, Jack N. Rakove, ed. (New York: Penguin Putnam Inc, 1999), 500. Emphasis in original. Herefater, Writings. For additional textual evidences, see also Banning, Sacred Fire of Liberty, 202-14. 39 83 primary mechanism whereby Madison reconciles the conflicting liberal ends of securing private rights with the republican ends of popular sovereignty. Eschewing the singular focus on Federalist 10 that thus undermines Gibson’s reading, Lance Banning turns to the whole of Madison’s writings in his effort to show how Madison articulated his attempts to reconcile the competing ends of liberalism and republicanism. In “Vices of the Political System,”40 written before the Constitutional Convention, Banning identifies the controlling principle of Madison’s political theory: The great desideratum in government is such a modification of the sovereignty as will render it sufficiently neutral between different interests and factions to control one part of the society from invading the rights of another, and at the same time sufficiently controlled itself from setting up an interest adverse to that of the whole society.41 The size of the sphere certainly plays a role in Madison’s reasoning on this desired end as, at the time of writing “Vices,” he was developing his own unique proposal for a federal legislative veto over state laws that relied on the multiplicity of characters and interests to produce “some disinterested and dispassionate umpire in disputes between passions and interests in the state.”42 By the time Madison was writing Federalist 10, however, his efforts to secure a federal legislative veto had failed, but Banning argues that the role for representatives in Madison’s thought had not changed significantly. In Federalist 10, Madison restates the great desideratum, “[t]o secure 40 Hereafter, “Vices” Writings, 69-80. Banning notes that this passage “has been repeatedly misread as evidence that [Madison] hoped to create a neutral sovereign over national interests and factions” (Banning, Sacred Fire of Liberty, 445 fn52). And he is correct – in order to read this passage in that manner it is essential to ignore what Madison was working on at the time (the development of the Virginia Plan and his own federal veto plan) and approach the plan with all the high-toned nationalism of Publius. Such a reading destroys the context of Madison’s thought, though it does play directly into the enduring debate over Madison’s supposed switch in political allegiances during the early administration of the republic. 42 James Madison to George Washington, April 16, 1787, PJM 9:384, (Writings, 80). 41 84 the public good and private rights against the danger of such a [majority] faction, and at the same time to preserve the spirit and the form of popular government,” and proceeds to identify two ways in which well-constructed republics help secure these competing ends where democracies fail.43 The first is representation; the second “is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter.”44 Banning, not without reason, leans heavily on “principally,” rather than the structure of the argument and the amount of time dedicated to representation in the text, to support his reading. Additional evidence seems to support this reading: Madison only identifies the benefit of drawing out the noblest characters by means of representation as an “auxiliary desideratum” in “Vices,” and “did not even mention the idea of a filtration of the people’s will in his letter to Thomas Jefferson…which sketched an early version of the [Vices] essay.”45 The purpose of Banning’s argument is to refute the charges of intellectual and political inconsistency levelled against Madison, an end which I believe Banning achieves to great effect. However, in seeking to show the breadth of Madison’s influences, the depth of Madison’s thought on the problem of reconciling liberal and republican ends, and the principled consistency with which Madison sought to secure those ends, Banning’s exertions to correct previous misreadings do not produce a clear, coherent account of how representation and the extended sphere secure the great desideratum. To be sure, many of the pieces are there, but as these 43 Federalist 10, 75. idem, 78. Emphasis added. 45 Banning, Sacred Fire of Liberty, 208. 44 85 fragments are not the focus of Banning’s argument, some scholars have been unable to understand Madison’s understanding of representation from Banning’s account; Banning’s lowering of representation in general, including the filtering effect of representation in particular, contributes to precisely the kind of misreadings Banning seeks so diligently to correct.46 It is then, largely under Banning’s standard of an intellectually consistent Madison whose great desideratum is to balance the demands of liberalism and republicanism, that I present the following account of Madison’s theory of representation. Banning’s evidence of consistency is particularly important to this account because the Constitutional Convention marks a firm division in Madison’s representative mechanisms, but not in his representative principles. The differences in Madison’s pre- and post-convention accounts of representation could easily be turned to charges of inconsistency but, properly understood, they serve as an essential reminder from the outset that even though a well-constructed republic needs a theory of representation in order to direct popular sovereignty toward just ends, that theory cannot be executed in a vacuum. Political circumstances must be accounted for, as far as the revolutionary mix of liberal and republican principles will allow. This is not to say that the distinction between Madison’s preand post-convention accounts of representation is simply one of ideal versus practical. As Banning assiduously notes, Madison learned as the convention progressed – and as his life experience increased – and made adjustments accordingly. Madison, far from a static ideologue, was a prudent statesman and eager student, always willing to invite his countrymen to understand the principles in action. “What is the proper conclusion from all this,” Madison asks 46 Gibson is the best example of this as he continues to identify Banning as a pluralist, though I clearly think this is wrong. The evidence for Gibson’s reading, however, is there as the fragments of the whole account are not clearly brought together and can be misread. See Gibson, “Impartial Representation and the Extended Republic.” 86 in a letter to Archibald Stuart as the divisions between the Federalists and Anti-federalists became more clear during the ratification process: That unanimity is not to be expected in any great political question… that if any constitution is to be established by deliberation & choice it must be examined with many allowances, and must be compared not with the theory, which each individual may frame in his own mind, but with the system which it is meant to take the place of; and with any other which there might be a possibility of obtaining.47 To understand Madison on his own terms then, we must first understand the failed regime the Constitution was drafted to replace; second, what was possible within the political restraints of the new regime; and third, that Madison’s standard for adjudicating success was to maximize congruence between the revolutionary blend of liberal and republican principles, and not rigid theoretical purity. In “Vices,” which enumerates the failings of America’s first post-Revolutionary effort at a national government, Madison directly assails the impotence and instability of, and injustices allowed by, the Articles of Confederation. Most commentators focus on the lack of stability in the legislature and lack of energy in the executive which Madison unequivocally maligns as vices, defects, evils, etc. However, the majority of Madison’s text is focused on problems caused by the structure of sovereignty under the Articles of Confederation. Under the Articles, the States ruled as independent sovereigns. Gathered together as Congress of the Confederation, each State was entitled to one vote in a unicameral legislature. There were no provisions made for executive or judicial branches, nor was there any place for these powers in operation since compliance with national legislative acts was left exclusively to the States in a voluntary capacity. “Under the form of such a Constitution,” Madison explains, the Articles of Confederation lack the “great vital 47 James Madison to Archibald Stuart, October 30, 1787, PJM 10:232 87 principles” of any political constitutions and are “in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States.”48 But even this idea that the Articles were a treaty of amity was undermined by the self-interested and protectionary policies of each of the States as they trespassed on one another and flaunted the Law of Nations with impunity. In order to fix these grave injustices, institutional reform alone – adding an executive and judicial power at the federal level with distinct and separated powers – was not enough. As Madison explained in a letter to Thomas Jefferson before the Constitutional Convention, the remedy was “ to change the principle of Representation in the federal system.”49 The principle of representation at work in the Articles was deeply influenced by the concept of sovereignty inherent in natural right philosophy, as evidenced in the language of the Declaration of Independence: When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.50 48 Writings, 72. Writings, 63. 50 Declaration of Independence, 1776. 49 88 Each individual was sovereign by nature, and as they left the state of nature and entered into civil society, that sovereignty was, by consent, transferred to a government for the express purpose of protecting their natural rights. In creating the Articles, however, the people were not instituting a new form of government – the essential principle of government remained the same under the Articles as it did before: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”51 Consequently, when gathered together in Congress, the States were represented as equal sovereigns, as individuals equal in a state of nature, not as disparate political communities of varying interests. Madison levelled three distinct charges against this “principle of Representation” inherent in the Articles’ reasoning. First, as already mentioned, the lack of a sanction meant that the body’s decisions lacked the force of law, and therefore lacked an essential component of substantive representation. “If the laws of the States, were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution?” Madison’s rhetorical question drives at the necessity of submission to civil law inherent in social compact theory, a submission that was altogether absent from not only the text but also the reasoning of the Articles. Second, the Articles failed to provide a Guaranty of Republican government, and the force necessary to enforce such a clause, to the States. “According to Republican Theory,” Madison reasons, “Right and power both being vested in the majority, are held to be synonymous.”52 Thus, for representation to claim just rule, it must rule in the name of the majority and by the consent of 51 52 Articles of Confederation, Article II Writings, 71-2. 89 the people – there is no other just claim to rule. However, the States were in almost constant convulsions from the rapid passage and revoking of laws by legislatures ruled by competing factions, and the national government was ultimately powerless to stop Shay’s Rebellion, the clearest example of the competing claims to rule in the post-revolutionary period, when Shay and his men took up arms against the government of Massachusetts. Lastly, the lack of a popular ratification of the Articles, that is the choice to base the Articles on the extant sovereignty of the States rather than forming a new, single sovereign by asking for the consent of the people, “gives [each State] a right if they chuse to exert it, of dissolving the Union altogether,” simply by ignoring any article that is not in its own, immediate interest.53 This re-presentation of competing sovereigns, without any submission to a common good or reference back to the people who ultimately hold the sovereignty directed by the States, completely undermines the ends of representation and the liberal concept of a common good within a civil society. In short, it fails to meet the needs of both republican and liberal political theory. Changing the principle of sovereignty, or more properly understood, continuing its progression beyond civil society into national unity, is not the only change which needed to take place to fix the faulty principle of representation in the Articles. If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming not merely because it is a greater evil in itself, but because it brings into question the fundamental principle of republican Government, that the majority who rule in such governments, are the safest Guardians both of public Good and private rights. To what causes is this evil to be ascribed? The causes lie 1. in the representative bodies 2. in the people themselves.54 53 54 idem, 74 idem, 75. Emphasis added. 90 Sovereignty is derived from the people and delegated to their representatives, so the exercise of sovereignty is ultimately only an outward instantiation of the character of the people who exercise it. In order to have good representation, Madison argues that we must not only change the representative bodies, but we must also change the people, and not particularly in that order: The great desideratum in Government is such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions, to control one part of the society from invading the rights of another, and at the same time sufficiently controlled itself, from setting up an interest adverse to that of the whole society… An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains.55 The first end of a properly constituted principle of representation then, is to structure the power of the people in such a way that the majority’s right to rule does not destroy the natural rights of the minority, and vice versa. Madison introduces a form of his “enlarge the sphere” argument here with a hypothetical: “Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the third? Will the latter be secure? The prudence of every man would shun the danger.”56 Enlarging the sphere, Madison argues with one of his signature understatements, can “lessen the insecurity of private rights” because it will make common interests and passions among the majority not less likely to exist, but less apt to be felt, and the greater variety of interests within a larger sphere will serve to check each other. This is a very simple argument that Madison will develop over the 55 56 idem, 79. idem, 78. 91 years, but the essential principle is clear from this initial introduction: good representation must change the people, but that does not mean that their essential nature changes. The second end of a properly constituted principle of representation is to draw “the purest and noblest characters” out of society and into public service. This question is completely ignored by Hanna Pitkin’s seminal work on political representation and the vast majority of the derivative literature: Why does someone choose to be a representative? Madison identifies ambition, personal interest, and a concern with the common good as the three primary motives, with the first two being the most common, and the second most industrious. Madison does not provide any proposals for addressing these motives in his earlier writings, but it is clear from his account of the evils perpetrated by selfish representatives that representation as a mechanism itself does not create noble characters, nor is the nature of the representatives any different from Madison’s account of the nature of the people. Furthermore, representation as constituted under the Articles invites the individuals least likely to have the requisite character to ameliorate the republic to hold office. In this context, we can begin to understand that Madison means more than size when he speaks about the extent of the sphere of government. Yes, enlarging the sphere does produce a number of goods, but size alone does not properly order the passions. A variety of passions and interests may be able to cancel each other out as motive forces of public policy, but this effect is not guaranteed. Madison is clear that an enlarged sphere never eradicates passions and interests, it only helps decrease the likelihood that they will be felt. The motive forces of faction never cease to exist, regardless of the size of the sphere, because, as Madison implies here and makes 92 explicit in Federalist 10, “[t]he latent causes of faction are…sown in the nature of man.”57 Enlarging the sphere means nothing if the subsequently enlarged republic is not also wellordered.58 Although Madison was not the author of the Virginia Plan, his involvement in its drafting, stature among the Virginian delegation, and preconvention writings all indicate, as Banning observes, “that it is principally his work, and there is nothing to suggest that any of its major points were inconsistent with his wishes.”59 Thus, the Virginia Plan offers an adequate starting point in an examination of what practical changes Madison sought to make in order to change the principle of representation of the early American regime. Article 1 states that “the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution.”60 This language of reformatory intent supports the common 57 Federalist 10, 73. Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (Cambridge: Harvard University Press, 2015). The recent scholarship of Bilder offers a challenge to this reading, but only insofar as I argue that Madison’s identification of the problem was clear and the principles guiding his reform proposals consistent before the Convention even began. Bilder notes that Vices was meant as an outline for opening remarks to the Convention, not a stand-alone essay with larger historical weight, and argues that the extended remarks of section 11 on the injustices caused by both representatives and the people was developed after the convention. Her evidence on these counts is largely based on the form of the argument, that the section is much longer and more detailed than any of the other sections, that section 12 has no content, and that the paper on which section 11 is written is different from the paper used for the preceding sections. Her conclusion that “[t]he extended discussion cannot yet be definitely shown to predate the Convention,” allows her to dismiss the content of the 11th section and focus on a reading of the remaining sections that is more favorable to her overall argument that Madison was a revisionist, especially of his own character (Bilder, Madison’s Hand, 4346). Additional evidence provided by Bilder points to a “cautionary note” from the editors of Madison’s papers as well a scholarly debate over the meaning and scope of Madison’s expanded sphere argument. However, none of this evidence has any bearing on her selective reading and subsequent interpretation of Vices as evidence of Madisonian revisionist tendencies, and, more importantly, one citation she gives to Banning directly refutes her claim: “This train of reasoning [the need for an extended sphere] was basically complete when Madison prepared his “Vices of the Political System of the United States” (Banning, Sacred Fire of Liberty, 208). The evidence is relevant insofar as it situates Bilder in the camp of those who read Madison as focused on weakening State power and building a larger national government, but this assertion is a secondary part of her argument and undeveloped at this point, thereby contributing nothing to the larger academic debate found in her footnotes. 59 Banning, Sacred Fire of Liberty, 115. 60 Writings, 89. Emphasis added. 58 93 argument that the State legislatures who originally authorized the Convention understood its original purpose to be limited to addressing the weaknesses of the current union “without totally scrapping the Articles of Confederation and creating a radically powerful national government, the like of which had not been even conceived of ten years earlier.” Thus, in this common account, the radical reforms which ultimately came out of the Convention were precipitated by the “oppressive behavior of state legislatures,” rather than a systemic failure of the Articles of Confederation themselves.61 Madison’s desire for a federal negative, which appears in Article 6, was his most personal addition to the reform plan, and fits this common narrative, justifying the creation of a strong national government as the response to tyrannical and self-interested State governments. The departure of several delegates from the Convention, most notably the majority of New York’s delegation, once it became clear that the Articles would indeed be scrapped in favor of an entirely new proposal, also provides anecdotal evidence for this common historical reading. This persistent, pragmatically derived narrative – that it was the misdeeds of the States that provided both the impetus for the Convention and the justification for the new regime – denies the possibility that theoretical principles informed any of the Convention’s proposed reforms. This assumption not only puts the proverbial cart before the horse, but it obscures the theoretical framework Madison developed before and implemented after the Convention. Madison did not derive the necessity for a change in the foundational principle of representation from the actions of delinquent States and malicious factions. These events were merely evidence of the theoretical problem that mere reform could not fix – the Articles were, at their heart, 61 Gordon Wood, “The Political Ideology of the Founders,” Toward a More Perfect Union, ed. Neil L. York (Provo: Brigham Young University, 1988), 10. See also Banning, Sacred Fire of Liberty, 441-2, fn. 15. 94 fatally flawed because they did not draw on a principle of representation that was sustainable, effective, or in accord with the necessities of private rights and dictates of popular government. Though Madison repudiated the most substantial charge derived from the reasoning of this narrative – that the Convention lacked the legal authority to propose such sweeping changes – early in The Federalist, he still had to remind readers that not only the outcome of this pragmatic narrative was wrong, but its methodological approach was also untenable. If the remedies proposed by the Convention were merely pragmatic, then one need only change the parameters of the hypotheticals in order to disprove the necessity of the proposed changes to the needs of Union. Madison emphatically rejects this pragmatic, shifting methodology. Far more than pragmatic, Madison understands the principles presented in the Constitution as a reconciliation between the spirit of the Revolution and the genius of republican liberty that will allow both spirits to thrive. Writing in Federalist 37, after the many supposed pragmatic and political compromises of the Convention, Madison reminds the enlightened friends of liberty that the changes proposed by the Convention were necessitated by theory: “It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it.”62 With or without Shay’s Rebellion, with or without paper money crises, with or without competing treaties and overlapping tariffs, the fundamental, theoretical problems of the Articles, according to Madison, were the same. The evidence invoked to make the pragmatic argument speaks only to the urgency of finding a remedy, not the origins of the problem to be remedied. 62 Federalist 37, 222. 95 With this commitment to reconciling the foundational principles of the regime with the theoretical principles which informed the American Revolution in mind, the Virginia Plan reads as a practical instantiation of Madison’s epistolary call to change the principle of representation of the Articles.63 Article 2 calls for a change in the rights of suffrage of the new National Legislature, proportioned on economic contribution or the population of free inhabitants, not equality derived from State sovereignty. Articles 3 though 5 call for a new, bicameral legislature to replace the Confederation’s unicameral model. Article 6 emphasizes that there are legislative matters the States are incompetent to address, which, in addition to Madison’s federal negative that would empower the National Legislature to void any State legislative act which conflicted with national law, highlights a new supremacy of national law that is wholly absent in the Articles of Confederation.64 Articles 7 though 9 establish National Executive and Judiciary branches, again asserting a new claim to authority combined with the offices necessary to exercise it. Article 11 provides a guarantee of Republican government to the States, which creates (at least in theory) a new power of oversight for the National government over the States.65 Article 12 appears as an administrative acknowledgment that will allow the Congress of the Confederation to meet until the new “articles of Union” take effect; however, the inclusion of this article acknowledges, from the outset, that the reforms would be so extensive that the government would, for all intents and purposes, be new, and a reasonable transition process would be both necessary and desirable. Article 13 calls for a new process for future amendments to the new 63 With the exception of Article 10. I don’t think Article 10 marks any significant change from the prevailing law at the time, the Northwest Ordinance of 1787. 64 The language of Article 6 is much more mild than Madison’s original language, which was for a negative power over any act for any case whatsoever. 65 See William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca: Cornell University Press, 1972). 96 Articles of Union which excludes the existing requirement of an unanimous agreement from the States in Congress. Article 14 calls for all members of the State governments to take an oath to support the National Articles of Union. And lastly, Article 15 calls for popular ratification by each of the States in order to bring the new Articles of Union into effect. Under the Articles of Confederation, the national government had been “a treaty of amity, of commerce and of alliance, between so many independent and Sovereign States.”66 Under the proposed changes, it would become a true government, with a mixed federal and national character that would draw its limited powers from the individual citizens rather than from the States. This is a significant change in the principle of sovereignty that gave birth to as many as six different conceptions of federalism at the start of the Convention, but the important theoretical implication at this juncture is the basis of the new national government on social contract theory, the same basis from which the States drew their sovereign claims.67 However, the representation of these individuals from whom national sovereignty is derived would happen in their capacity as citizens of the various States. In the first branch, the representatives would be chosen directly by the people of the several States; in the second branch, the representatives would be nominated by the legislatures of the several States and elected by the first chamber of the national legislature. Both branches would be apportioned, in an explicit rejection of the Articles of Confederation, “according to some equitable ratio of representation” based on population. The principle of representation in this outline thus severely reduced the power of the States to be represented as equal sovereigns in favor of a yet undefined turn to the equitable 66 Writings, 72. Michael P. Zuckert, “Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention,” The Review of Politics, Vol. 48, No. 2 (Spring, 1986), 166-210. 67 97 representation of the citizens of the several States. Even in this form of a rudimentary outline, Madison’s commitment to representation as a tool to ensure the uniform rule of law derived from the will of the people is clear. The principles of the Virginia Plan evince that Madison was not a Nationalist because he was simply reacting to injustices taking place in the States, nor, as would later be charged, was he an advocate for the authority of the States at the expense of the national government simply in reaction to Hamilton’s administrative prowess. Both positions – a place for national supremacy and State competency – are present in the Virginia Plan. No one at the Convention had thought more about these fundamental theoretical problems than Madison, but Madison did not come to the Convention with a rigid set of demands and an inflexible commitment to his, or his State’s, own interests. As Banning so artfully shows, Madison came to argue for principles which he felt would reconcile the needs of popular government with the demands of stability, and as much as he knew of the subject, he knew he did not know everything. Madison came to learn as much as he came to persuade, and the changes in the practical instantiations of his proposed reforms, from the rough outline provided in the Virginia plan, through the ups and downs of the Convention, and into the Federalist Papers all attest to this consistent commitment to the principles of liberal and republican government. But the Virginia Plan was nothing more than a plan, a rough outline that announced the principles which would guide the debates and deliberations which would ultimately determine the particulars of the new regime. The most common, and rudimentary, narrative used to explain the proceedings of the Constitutional Convention is as a political process, a compromise (the Connecticut Compromise) between the interests of the large States (the Virginia Plan) who wanted representation proportioned according to population, and the small States (the New Jersey Plan) 98 who wanted the States to be represented equally as States. The fundamental representational assumption in this narrative is that representation is a means of maximizing interest. This reasoning integrates well with the basic theoretical identification of representation as a response to the simple inability to gather a great number of people conveniently or allow them to speak all at once. This account of a rational, calculated compromise – that is, one not derived from a cohesive theory but one founded in immediate utility and interest – produces a simple, and easily consumed conclusion, but it does not, however common it may be, hold up to scrutiny. While the final document produced by the Convention contained many compromises, they were not the simple political compromises of horse-trading, logrolling, etc, but complex compromises that reverberated throughout the structure of the document to produce a whole that was both politically palatable and theoretically consistent. While demonstrating Madison’s ownership of the ideas at the heart of the Virginia Plan is rather straightforward, distinguishing where Madison’s ideas were and were not implemented in the Constitution is more complex. First, Madison’s democratic theory, considered in isolation, is not the theory of the Constitution, and in seeking to distinguish the particulars of Madison’s thought from the outcome of the Convention, or create a private Madison distinct from a public, political one, we can easily be drawn into extremes of hatchet jobs or hagiography.68 Second, 68 See Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University of Kansas Press, 1985), 203-209, for a summary of what Madison’s Constitution would have looked like had all of his ideas been implemented. But, see also Sacred Fire of Liberty, 111-233 for Banning’s account of Madison and his changing mind. I think Banning does much more justice to Madison’s thought than McDonald does – McDonald’s summary treats Madison as a static thinker, which Banning disproves, and overstates what Madison saw each part of his proposal accomplishing, though ultimately I don’t think McDonald is wrong on what Madison’s proposals could have caused. I think the distinction on intention is important, and points to why Banning’s account of how and why Madison changed his mind is both compelling and essential. This point on hagiography is a prudent observation with which Greg Weiner begins his argument in Madison’s Metronome (cited below). I think it is an important point worthy of continual reference as both extremes do great damage to all parties concerned. 99 Madison’s status as the leading light of the Convention is not unquestionable, as Forrest McDonald observes: “of seventy-one specific proposals that Madison moved, seconded, or spoke unequivocally in regard to, he was on the losing side forty times.”69 Madison’s defeats at the Convention were not simply quantitative either – his most comprehensive defeat came with his most personal contribution of the federal negative. In short, if measured according to the norms of modern political science (brokering power and securing constituent interests, to name two of many), Madison’s time at the Convention was a failure. However, even after decades of neglect, Madison’s place in history defies such a conclusion. Again, as with the basic principles of representation, what we know about Madison and how we know it are inaccurate and incapable of explaining what Madison truly accomplished at the Convention and with the Constitution. Greg Weiner’s concept of “temporal republicanism” offers a more robust framework than the simplified political narrative, and through it we can begin to understand the significance of Madison’s contribution to the American regime in particular and representational theory in general.70 Weiner argues that when Madison wrote “Vices,” he was not only concerned about impartial and impetuous majorities in the State governments, but – more importantly – about impotent majorities at the national level. The fundamental principle of Madison’s theory of representation, one Weiner stresses continually because of the Progressive misreadings of Madison’s thought, is that the majority must always rule. Under the Articles, not only were State politics tumultuous, but national majorities did not rule. The national majority was almost always disregarded on matters of commerce and finance, both domestic and foreign, as each State 69 McDonald, 208-9. Greg Weiner, Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics (Lawrence: University of Kansas Press, 2012). 70 100 sought to maximize its own immediate interest at the expense of both the interests of the other States and its long-term interests. Thus, the problem that Madison identified was one of creating a government that would simultaneously allow majorities to rule while constraining them from perpetrating injustices against the rights of the minority or sacrificing the long-term interests of the nation. To reconcile the necessity of majority rule with the necessity of protecting minority rights, Weiner argues, Madison’s theory of representation seeks to slow down the political process through staggered elections that require durable, if not cohesive, majorities in order to move the political process forward. “Madison’s intent was to slow and guide, rather than preempt, majority deliberation in cases of rights –…to establish speed bumps rather than roadblocks.”71 The implications of temporal republicanism are best seen in the reasoning Madison attaches to his argument in favor of the Senate in the Federalist Papers. The jump from the Convention to the Federalist in reading the development in Madison’s thought is necessary, and warranted, because the rationales expressed therein were the product of the Convention. To be sure, Madison was the most theoretically prepared member of the Convention, but – again, as Banning assiduously proves – Madison was not static in his thought nor rigid in his particulars. Madison was severely disappointed with the apportionment of the Senate but, as we will see below, he found means by which he could reconcile political and theoretical necessities. Madison saw government as a reflection of human nature, meaning of course that his conception of government mirrors his conception of human nature. At the same time that Madison recognizes man as inherently capable of good, he knows that man is capable of great mischief and prone to 71 Weiner, 96. 101 vice when not supplied with better motives than immediate self-interest.72 The majority must rule in a just republic, Madison argues, but they must rule reasonably. Man’s natural capacity for reason distinguishes him from beasts, but Madison rejects the idea that this natural capacity for reason means man is naturally reasonable. This problem, of placing the guard of liberty in the people even though the same people may – at times – not be the most trustworthy guard, is remedied with the concept of “due responsibility” which Madison introduces in Federalist 63. Madison acknowledges that this term may “appear not only new, but paradoxical,” and proceeds to offer two distinct applications of the idea. First, “[r]esponsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents.”73 In order for a government to be responsible, it must not only be responsive to the people, as the representatives in the House are with their short, two year terms that keep them in frequent contact with the immediate nature of popular opinion, but it must also effectively secure the long term interests of the public. “The proper remedy for this defect must be [a Senate], which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.” Effective policies, essential to the liberty and stability of the people, take time to develop that a responsive, reactionary form of representation is incapable of securing. Bicameralism, thus layers two different types of representation to produce a legislative power that is structured to allow the people to rule themselves responsibly. 72 73 Federalist 51, esp. 319. Federalist 63, 381. Emphasis added. 102 If the people become subject to passions contrary to their true interests and the rights of the minority – a danger Madison sees as rooted in the nature of man but not the default state of government,74 this layering of representational modes has a second benefit. The longer term and distinct character of the institution creates an institutional bulwark “as a defense to the people against their own temporary errors and delusions.”75 The prepositions are essential here. This is a republican solution to one of the many instances of the foundational problem of popular government and highlights an essential component in Madison’s thought: popular opinion – the immediate and reflexive self-interest of various portions of society – which is passionate and problematic, is distinct from public opinion – the sense of the community and public mind – which is the foundation of a free government. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?76 Time is essential to Madison’s solution to the problems of republican government. If structured properly, time adds to the efficacy of republican government while still maintaining its essential, popular derivation and character. Weiner’s summary of this principle is excellent: The chronology Madison implies is crucial for understanding why critics are mistaken when they portray the Senate as an aristocratic body whose purpose was 74 I think this is the primary distinction between my reading of Madison and those influenced by Diamond. Federalist 63, 382. Empahsis added. 76 idem, 382-3. 75 103 to foil public opinion. The passage just quoted [above] suggests that the people ordinarily act on the basis of reason, justice, and truth. It is only at “particular moments” that either “passion” or “advantage” clouds their reasoning. By temporary suspension of these impulses, reason, justice, and truth regain their authority. Madison’s latent assumption about the calming effect of time was herein made explicit, and again, it was apparently time itself – not what happened in the interim, which Madison did not specify – that served this function. There was no indication of moral tutelage by leaders; on the contrary, the tacit premise was that public opinion was the primary force to which the Senate reacted. Nothing would have occurred except the passage of time, and this alone, Madison suggested, was sufficient to defuse the passions.77 In light of Madison’s later writings on public opinion, it would seem that Weiner overstates his point about the absence of tutelage a little here, but in the context of this passage from Federalist 63, Weiner’s focus on the centrality (but not singularity) of time to Madison’s theory of representation is absolutely correct. Time accomplishes what enlarged spheres and parchment barriers cannot: giving space to dissipate kinetic passions while the size of the regime serves to dilute potential ones, and allowing those passions to immolate themselves instead of relying on the parchment barrier of a “do not enter” sign to stop a stampede. Madison’s conception of political time therefore adds a moral component to representation because it prioritizes durable, cohesive majorities over immediate, passionate, and impulsive ones. Madison’s assertion that “reason, justice, and truth will reign,” more often than not, over a society when “the cool and deliberative sense of the community prevail[s] over the views of its rulers,” highlights this morality. In a just and reasonable government, the people must ultimately rule, but the legitimacy of popular government does not come from majoritarian force, but from well-established and well-distributed public opinion. 77 Weiner, 50. 104 Madison’s own experience with the institution of a national bank offers a comprehensive example of his deference to established public opinion: as a Congressman in 1791, Madison was the leading opponent of the First National Bank in Congress, challenging the Bank’s proposed charter on Constitutional grounds;78 during the Jefferson administration in the early 1800s, Madison helped dismantle the National Bank;79 by 1816, as President of the United States, Madison supported the charter bill for the Second National Bank which, as one historian notes in a brief synopsis that is rife with comedic understatement, “was no longer a constitutional issue.”80 The national bank remained a regional issue, but public opinion had settled in favor of the bank to such a degree that it was no longer a Constitutional issue – there was no debate as to whether the bank was either necessary or proper, which is precisely the distinction Madison evokes when he distinguishes impassioned interests (popular opinion) from cool and deliberate opinions (public opinion).81 Time is its own form of wisdom. “The mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned before public bodies as well as individual, by the clamors of an impatient avidity for immediate and immoderate gain.”82 By institutionalizing time as an essential component of representation, Madison empowers majorities that he believes will be, more often than not, both reasonable and just. In identifying this moral prioritization, it is essential to understand that Madison is not making an arbitrary choice between two types of majorities: reasonable ones and passionate ones. 78 Lance Banning, ed., Liberty and Order: The First American Party Struggle (Indianapolis: Liberty Fund, 2004) 70-87.; Writings, 480-490, 749-50. 79 Gordon S. Wood, Empire of Liberty (New York: Oxford University Press, 2009), esp. chap. 8. 80 Robert Allen Rutland, The Presidency of James Madison (Lawrence: University of Kansas Press, 1990), 198. 81 Roughly speaking, the Northern States had been for the First National Bank and the Southern States were opposed, whereas the Southern and Western States were for the Second National Bank and the Northern States (who stood to lose their dominance in banking) were opposed. But in either case, both the grounds and intensity of the opposition were very different between the First and Second National Bank charter debates. 82 Federalist 42, 264. 105 Human beings are naturally both reasonable and passionate but, drawing on the essential principles of natural law, Madison concludes that only reasonable and dispassionate decisions can be consistently just. Any other type of motivation, “impulse of passion, or of interest,” would be “adverse to the rights of other citizens” as well as “the permanent and aggregate interests of the community.”83 Madison’s moral priority comes from the foundational principles of the regime, from the answer of the most basic question of government: why are governments formed among men? We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.84 Madison’s institutionalization of time as a representative principle increases the likelihood that it will be much more difficult to sacrifice the long-term interest of the people to light and transient causes – even if felt intensely by a majority for a short period. Understanding Madison’s institutionalization of time as a representative principle is essential to reconciling the apparent conflict between Madison’s historical stature and losing record at the Convention. While Madison’s conception of representation is present throughout his arguments and motions at the Convention, it is most clear in the development of the Senate, followed closely by the development of the executive power. More than any other institution, 83 84 Federalist 10, 72. Declaration of Independence, 1776. 106 Madison’s understanding of what the Senate represents elucidates why it is so difficult to talk about representation in the American regime without speaking of separated powers, enumerated powers, federalism, etc, and why Madison’s theory of representation, at the same time that it pulses through the whole of the Constitution, has for so long been overlooked. Following the interpretations of biographer Irving Brant, and the work of Martin Diamond and his students, the vast majority of the literature treats Madison’s arguments for the distribution of powers between the House and the Senate at the Convention as evidence in the ongoing debate about in the (alleged) fluctuations in his commitment to nationalism. There are certainly connections between the powers in question and the national and federal power balance, as Banning shows in his argument against this popular account of a fluctuating Madison, but the distribution of the powers between the Senate and the executive office points to an essential change in Madison’s application of his theory of representation. The consistency of the representative principle that the majority must rule, despite the dramatic institutional changes between the Virginia Plan and the Constitution, has largely been lost in the ongoing debate over nationalism versus federalism. Because Madison’s underlying principled consistency has been overlooked, especially in favor of citing his displeasure with the Great Compromise, the literature presents an almost irreconcilable break between Madison’s theory behind the Virginia Plan and what was ultimately established by the Constitution.85 As the Virginia Plan makes clear, Madison came to the Convention with the hope of securing a bicameral legislature that would be chosen in different modes but operate on the same representative principle. Madison called this principle proportional representation, by which he 85 For more on the debate about Madison’s commitment to Nationalist principles, see Banning, Sacred Fire of Liberty, esp. chap.6; See also, pg. 455 fn 1 for a list of literature against which Banning argues. 107 meant that the number or representatives of each State would be proportional to their population. This is an important distinction from the modern use of proportional representation, which refers to the mechanism of representing parties and interest groups according to their percentage of the total vote. Madison always derived representation from the individual, not from groups, as pluralist theory has evolved to argue. Madison’s passionate commitment to the proportional representation of both chambers was derived from his belief in the principles of natural law; since man came out of the state of nature and into society as equals, justice demands that they be represented proportionally, as equals. In arguing for a new principle of sovereignty at the national level, Madison was clearly drawing on the ideas John Locke, but the breaks from English practice in his theory were just as prominent as his reliance on Locke’s natural rights philosophy. In England, each of the branches of government – the House of Commons, the House of Lords, and the Monarchy – represented different estates of the realm – the common people, the noblemen (who were the property holders), and the Monarchy. Madison’s argument for proportional representation in both chambers of the national legislature was a clear rejection of the idea of estates, and even the idea of representing property. Madison believed that the justice of the regime is firmly attached to the justice of its representative principle, and in order for his ideal regime to be just, representation had to be derived from the people. The alterations in the principle of sovereignty at the heart of Madison’s proposed shift from a confederal to a national government demanded this representative principle. As the Convention began, Madison had little time to advocate for his ideal regime before he ran into the politics of representation that almost thwarted the Convention before they ultimately forced him to adjust the application of his theory of representation. Historian Clinton Rossiter notes that Madison wrote to Martin Van Buren in 1828, “in an effort to dispel a 108 gathering myth” that the fundamental question was the division of power between the national government and the States. The threatening contest, in the Convention of 1787 did not, as you supposed, turn on the degree of power to be granted to the Federal Government, but on the rule by which the States were to be represented and vote in the Government…and the compromise which ensued was that which established an equality in the Senate, and an inequality in the House of Representatives. The contests & compromises turning on the grants of power, tho’ very important in some instances, were knots of a less Gordian character.86 The myth Madison sought to dispel continues today in the debate over the powers Madison sought to give the national government before and after his alleged switch from nationalist to State’s rights advocate. As far as the representation question is recognized in this debate, it is simplistically presented as a mere political compromise between the large and small States. However, the problem of representation in the new Constitution was indeed a Gordian knot, a problem unsolvable without a new and unprecedented division. Though Rossiter connects – not erroneously, but again, in a way that at once obfuscates the role of representation and explains why it has been neglected for so long – the compromise with the foundation of federalism in the Constitution, his observation serves to point the way to a more complete understanding of what happened to Madison’s theory of representation after the Convention cut the Gordian knot. If this fifty-fifty accommodation had been simply an exercise in political arithmetic, it would never have stood up under the pressure of later events. It stood up in the early years, and stands up today, because it was indeed a projection, crude but effective, of one of the large facts of life in the new Republic. The Great Compromise, in sum, was the longest constitutional step ever taken in the process of creating a new kind of compound nation. While the provisions for proportional voting on a popular basis in one house of the legislature and for 86 Clinton Rossiter, 1787 The Grand Convention (W.W. Norton Company: New York, 1966), 196; Max Farrand, Editor, The Records of the Federal Convention of 1787, Revised Edition, 4 vols. (Yale University Press: New Haven, 1966). III, 477. Emphasis in original. 109 equal voting of the states in the other are not the only federal arrangements in the Constitution, they are, surely, the most essential, and without their support all others would fall to the ground. It is a delicious irony of history that the “invention” of American federalism should have been the result of an ill-tempered struggle for power, and that the man, James Madison, who first celebrated publicly the beauties of this unique system should have been the most irreconcilable of nationalists and the last to surrender.87 Madison was, indeed, the last member of the Convention to surrender to the political necessity of the Compromise, but it was far from a complete surrender, and it was certainly not unprincipled. In the face of “the large facts of life in the new Republic,” Madison recognized that the ideal regime he had derived from natural law philosophy was not politically feasible, and he had to reconcile the essential principles of his representative theory with the prevailing political reality of State governments, which were at once based in the same sovereign claims he sought to make for the nation and inadequate to the task of securing the liberties and happiness of the people, on the fly. Representation cannot be understood or implemented outside the realities of the regime where the representation takes place. The most visible change from Madison’s early formulation of the Senate was in its method of selection. In the Virginia Plan, the Senate was to be chosen from nominees put forth by the State legislatures and elected by the House of Representatives, who would serve for a much longer term, and be granted the same legislative powers as the House. While the proportional apportionment and popular selection of the House appears to have been universally assumed, the appropriate apportionment, size, and character of the Senate was anything but clear. Though the several members of the Convention had different expectations for the Senate, 87 Rossiter, 193-4. 110 the unifying feature of their proposals was that a significant majority expected the Senate to represent something else, not just the people twice, as many delegates assumed apportionment by population in both chambers would. Richard Spaight of North Carolina proposed the election of Senators directly by the State legislatures but, in a moment of foreshadowing, withdrew the motion when Rufus King of Massachusetts pointed out that such a method would be impracticable, unless the Senate were as large as the House or “the idea of proportion among the States was to be disregarded.”88 James Wilson of Pennsylvania opposed the election of the Senate by either the House or the State legislatures and suggested (because he did not yet have a proposal prepared) that the Senate would be properly independent if elected by the people from electoral districts that combined various States.89 This idea of grouping the States together into districts as a method of resolving the large state versus small state debate was introduced by a number of other delegates as well, but Madison spoke out against these districts since “local partiality” would benefit citizens of each district’s larger States, possibly precluding more virtuous citizens from smaller States from serving.90 Ultimately, the Convention settled on selection by State legislature on June 25th with a 9-2 vote, weeks before the delegates followed through on King’s reasoning and disregarded population in the Senate with the Great Compromise on July 16th (with Madison and the rest of the Virginia delegation dissenting on both counts).91 From the outset of the Convention, Madison envisioned a Senate which would check the democratic excesses of the House. “In order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. These were first to protect the people 88 Farrand, I, 51. Emphasis in original. Farrand, I, 52; see also, S, 58-9. 90 Farrand, III, 110; I, 291; I, 52. 91 Farrand, I, 408. 89 111 agst. [sic] their rulers: secondly to protect <the people> agst. [sic] the transient impressions into which they themselves might be lead.”92 The end of the Senate is to see that the people are represented well, not simply represented twice. In Madison’s understanding of republican principles, this means that the Senate must be popularly elected. The dangers to minority rights are inherent in human nature, but changing the basis of representation is not necessary to remove that danger in Madison’s account. Everything depends on the structure of the institutions to create the time and space for those dangers to dissipate and be disregarded. However, even today, there are multiple strands of republican political theory that range from defining republicanism’s essential feature as popular government to the rule of law.93 This vagary inherent in republicanism meant that Madison’s frequent invocation of his commitment to creating a government founded on republican principles allowed other delegates to concur with Madison’s commitment at the same time they challenged his claims that justice was to be found only in popular government. As the compromise proposals piled up, one consistent idea began to emerge from the other delegates: the House would represent the people, and the Senate would represent the States. A derivative of this idea, which found numerous forms, was that since each chamber represented different constituents, they should have different powers. The origination clause, 92 Farrand, I, 421. For an introduction on the complexities of this debate, see: Philip Pettit, Republicanism: A Theory of Freedom and Government (New York: Oxford University Press, 1997); M.N.S. Sellers, Republican Legal Theory: The History, Constitution and Purpose of Law in a Free State (New York: Palgrove Macmillan, 2003); Bill Brugger, Republican Theory in Political Thought: Virtuous or Virtual? (New York: St. Martin’s Press, 1999); Daniel J. Elazar, ed., Republicanism, Representation, and Consent: Views of the Founding Era (New Brunswick: Transition Books, 1979); Alfred De Grazia, Public and Republic (New York: Knopf, 1951); Maurizio Viroli, Republicanism, Antony Shugaar, trans. (New York: Hill and Wang, 1999); Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of John Locke (Chicago: University of Chicago Press, 1988). 93 112 which gives the House exclusive authority to emanate funding bills was a product of this derivation and, in its original form, denied the Senate the power to alter or amend money bills in any fashion.94 Edmund Randolph had high hopes for a plan to give the Senate one vote per State on a list of thirteen federal questions and proportional representation on all other questions, a plan which he communicated to Madison almost a week before the Great Compromise.95 Madison did not support any of these distinctions and continued to challenge the origination clause, even after the Great Compromise, not only because the “exclusive origination of money bills” was “a compensation for the sacrifice [of proportional representation] extorted” from the large State, but because the Senate needs to be equal to the House in order to be a check on it.96 Madison’s inability to persuade the delegates of the justice of basing representation in the legislature fully on the people ranks among his heaviest defeats at the Convention, and is usually the first piece of evidence offered by scholars who seek to distinguish “Madison’s constitution” from the Constitution. But, and this is essential to understanding what Madison sought to accomplish in the face of numerous and heavy defeats, Madison was still able to influence the structure of the institution, demolishing the unicameral arguments of the New Jersey plan and establishing an institutional power equal, though not the same in duty, to the House. The Senate had to be “the great anchor of government,” and in keeping its powers equal to the House, Madison’s belief that institutional structure is as important to good representation and good government as the foundations upon which the representative claim is made, shines through. 94 Farrand, I, 526-31. Farrand, II, 17-8; III, 55-6. 96 Farrand, II, 276-7. 95 113 Even if the Senate were drawn from the States, it could still be made to represent the wisdom and institutionalize the cadence necessary for the people to govern themselves freely. This commitment to the Senate as an institution equal to the House does not mean that the scope of the Senatorial powers remained unchanged in Madison’s thought. In Madison’s original formulation, the Senators would first be nominated by State legislatures and then elected by the members of the House. The members of both chambers would in turn elect someone to the office of the National Executive. The Virginia Plan called for an Executive and a Council of Revision drawn from the National Judiciary, who was also chosen by the National Legislature, to pass judgment on every act of the National Legislature. These distinctly parliamentary methods made Madison’s first Senatorial conceptions rather active in both the selection and the exercise of the executive power, but in the aftermath of the Great Compromise he began to change his mind. On July 17th, the delegates focused on the mode of selecting the Executive and his tenure in office. Selection by the people at large or by electors chosen by the State legislatures was defeated 9 to 1 and 8 to 2 respectively before the delegates voted unanimously for selection by the National Legislature. Yet, as soon as the discussion turned to the question of re-eligibility and the length of the executive term, the delegates were once again at odds. Tenure during good behavior was sufficiently close to an elective monarchy to be treated as such, and continual reliance on the legislature for continuance in office robbed the executive of the independence necessary for good government. The delegates were unable to decide and finally agreed only to remand the question until later. Madison, during the course of the debate, gave his longest recorded discussion on the doctrine of the separation of powers in response to the executive question and laid out the problem that he would not clearly answer until the Federalist. “He,” 114 Madison says, referencing himself in the third person as he does throughout the whole Conventional record, conceived it to be absolutely necessary to a well constituted Republic that the two first [executive and legislative powers] shd. be kept distinct and independent of each other… Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Govt. therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view.97 The structure of the regime is central to Madison’s thought and dictates the demands and dimensions of his representational theory. Madison did not discover the separation of powers doctrine the day after one of his heaviest defeats of the Convention, nor did he break new ground in declaring that republican government could only be saved by republican principles. But his vocal ruminations here mark a change in his thought and the beginning of an acceptance, albeit at times begrudging, that the regime he envisioned at the start of the Convention, with the legislative power based fully in the people, would have to be reconfigured. The Senate remained the anchor, institutionally designed to produce wisdom and offer the office holders time and institutional incentives to hold the proverbial ship of state in place during short-lived, popular gales, but Madison’s understanding of republican principles necessitated a constriction of the scope of the Senate’s authority from his ideal regime. It is essential to understand what Madison means by genuine republican principles as we make sense of the institutional reforms Madison helped direct in response to the necessities of 97 Farrand, II, 34-5. 115 the Convention. Madison’s firm belief in the republican principle that the people are the best repository for their own liberty, but this does not mean that his understanding of republicanism is simply a democracy, but bigger. This idea becomes clear as we compare Jefferson’s understanding of republican government with Madison’s: Jefferson: Indeed, it must be acknowledged, that the term republic is of very vague application in every language. Witness the self-styled republics of Holland, Switzerland, Genoa, Venice, Poland. Were I to assign to this term a precise and definite idea, I would say, purely and simply, it means a government by its citizens in mass, acting directly and personally, according to rules established by the majority; and that every other government is more or less republican, in proportion as it has in its composition more or less of this ingredient of the direct action of the citizens.98 Madison: [P]ure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found 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. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are 98 “Thomas Jefferson to John Taylor, 28 May 1816,” Founders Online, National Archives, last modified December 28, 2016, http://founders.archives.gov/documents/Jefferson/03-10-02-0053. [Original source: The Papers of Thomas Jefferson, Retirement Series, vol. 10, May 1816 to 18 January 1817, ed. J. Jefferson Looney. Princeton: Princeton University Press, 2013, pp. 86–90.] 116 seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.99 If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified;100 Madison’s understanding of republican government is not only different from Jefferson’s, it is the opposite. For Jefferson, there is a direct correlation between how republican the government is and how involved the mass of the people is directly in politics. Notwithstanding his persistent commitment to popular apportionment, Madison rejected definitions of republicanism similar to Jefferson’s as sufficiently synonymous with the failed democracies of all human history, and thus subject to the same inescapable and ignominious end. Madison’s theory of representation clearly calls for a popular apportionment from which the representatives will be drawn, but then the people must be fully excluded from direct participation in the operations of government. The 99 Federalist 10, 76. Federalist 39, 237. 100 117 exclusion of the people from direct action in government, that is, wielding the power of government, is the first mechanism whereby representation subordinates popular opinion to public opinion. “The true distinction between [the governments of ancient Greece] and the American governments, lies in the total exclusion of the people in their collective capacity, from any share in the latter,” as well as “the other advantage, of an extensive territory.”101 Madison’s chief concern with the Senate was that it, if apportioned based on State equality and populated by the preferred agents of State legislatures, would allow for the possibility that a minority could rule, subverting the essential republican principle outlined in Federalist 10 that the majority must always rule. Madison’s careful wording in Federalist 39, “[i]t is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it,” places a significant amount of stress on society, rather than the people. Federalism was an inescapable feature of the society, and its protection was among the chief concerns of many leading proponents and critics of the Convention and the new Constitution. Madison took these concerns seriously since, as Banning again expertly shows, he was particularly aware of the consequences of the arguments in favor of a partly federal versus strictly national government, and the need for States’ support. The integration of federalism into the representative principle of the Constitution fulfills this essential requirement that representation be derived from the great body of society, but just barely. Madison is clear that the mode of choosing members to and the equal apportionment of the Senate is not theoretically correct at the same time that it is necessary: 101 Federalist 63, 385. 118 Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.'' A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.102 This sacrifice of theory to a compromise that “is probably most congenial with public opinion” is one of the greatest examples of Madison’s commitment to republican principles. Public opinion, “the cool and deliberate sense of the community,” “ought, in all governments, and actually will in free governments, ultimately prevail over the views of its rulers,” and Madison made no exemptions for himself.103 The apportionment of the Senate on principles of State equality made it possible for a minority of the population to exert an influence in republican government not 102 103 Federalist 62, 375. Emphasis on proportional and equal in original, all others added. Federalist 63, 382. 119 proportional to its size, but it also institutionalized the federal principle at the highest level – a sacrifice not without benefit or danger, yet wholly derived from public opinion. This is the end of Madison’s theory of representation – to prejudice the institutional process toward reason at the expense of immediate interest and passion, while in the end insisting that the majority must rule. Another of the “advantageous consequences” of the sacrifice of proportional representation in the Senate was a significant enhancement in the separation of powers in the Constitution. Far from the parliamentary model Madison originally envisioned, the Senate’s participation in executive powers was significantly reduced in an effort to balance out and mitigate the potential dangers of minority control, and the powers of the executive were both distinguished and enhanced. The Senate would no longer appoint the judiciary, nor would they be empowered to make treaties – indeed, according to the modern Senate’s understanding of their “advice and consent” powers, “[t]he Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification.”104 And, by the end of the Convention, the Senate was completely removed from any role in electing the executive.105 The development of Madison’s understanding of the executive power at the expense of the Senate has been largely undeveloped in the literature, with almost all studies instead focusing on either an historical account of his time as President, or his part in the Helvidius-Pacificus debates.106 As far as 104 https://www.senate.gov/general/Features/Treaties_display.htm accessed last 1/16/17 emphasis in original. The Electoral College was given the responsibility of choosing the executive, and in the event of an electoral tie then the House would elect the executive, with each State delegation having one vote. 106 There is definitely a place in the literature for an examination of Madison’s theory of executive power. While modern presidential literature focuses almost exclusively on Locke and his account of executive power in his Second Treatise on Government, Madison (not infrequently) references Montesquieu’s theory as a competing option. Furthermore, Madison did not simply discover Locke in response to the Great Compromise, but was well-versed in his texts when he was suggesting parliamentary executive forms. As the 105 120 Madison’s understanding of executive power relates to representation, the development of this missing theoretical account is unnecessary. It is sufficient to note that Madison moved away from a traditionally parliamentary understanding of executive power toward a distinct, co-ordinate, and unitary executive in response to the Great Compromise. The executive office was to be equal to the potential, and in Madison’s mind probable, legislative vortex and the strengthening of the office had the double benefit of strengthening the doctrine of the separation of powers and adding an additional check to the possible danger of minority rule. The “great principle of responsibility,” Madison explained in a debate during the First Congress over whether the Senate or the Executive held the removal power, is rendered untenable when the powers of government are not sufficiently divided or are improperly mixed. “Shall we trust the senate, responsible to individual legislatures, rather than the person who is responsible to the whole community?” No Madison concludes, and in so doing states that by limiting the Senate’s participation in the executive power, again, “[t]he chain of dependence therefore terminates in the supreme body, namely, in the people.” 107 In light of this continued belief in the justice of majority rule under the republican form, we must double back to Madison’s scathing critiques of the excesses of popular government and the factious tendencies of all the State legislatures. If the State legislatures were factious vortexes of popular excess, what made Madison so confident in his initial proposals that a new, bicameral national legislature would not only avoid becoming a factious vortex itself, but through a veto power over all the State legislatures prevent their excesses as well? Or more to the point of the conclusion of this chapter, and chapter 3, will argue the literature’s finding that Madison thought is essentially derived from British political theory and the Scottish enlightenment is incomplete. 107 PJM, 12:232-9. 121 regime the Constitution created rather than the one Madison imagined, if Madison was correct in his identification of the representative bodies and the people themselves as the greatest source of evils perpetrated under the Articles of Confederation, how was this new regime, with the same States and the same people, going to be just? This is the portion of Madison’s theory that he had been ruminating on for years and finally explicates clearly for the first time in Federalist 10 and 51. Expanding the sphere of the regime will provide for the remaining necessities upon which Madison’s hopes for just republican representation rest. Madison begins his account of this remedy with the definition of faction: 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, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.108 That a body of citizens must be both united and actuated is essential to Madison’s definition as he finds “[t]he latent causes of faction…sown in the nature of man.” The predisposition toward the pursuit of immediate and personal interests is inherent in human nature. That the cause of the problem is an essential portion of human nature means that the causes of faction cannot be fixed: every citizen is, and always will be, a potential source of faction. This potential energy is only unlocked when individuals recognize others who share their same opinions and interests and find motive to act upon them. The purpose of a well constituted representative regime then is to break faction by preventing it first from becoming united, and failing that, from being actuated. Most readings of Federalist 10 only focus on the thwarting of actuation, but breaking both activating principles of faction is essential to Madison’s representational ends. The mechanism of 108 Federalist 10, 72. Emphasis added. 122 representation – the popular choosing of, if not the best, then at least the most pre-eminent characters from the body of the citizens – is capable of breaking both activating principles of faction, but only if properly constituted. The effect of [representation 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 interest of their 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. On the other hand, the effect may be inverted. Men of factious 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.109 Nowhere present is the idea that representation is a re-presenting of the people or their interests. The interests of the people are certainly in the background as Madison made clear at the beginning of his account by holding up the “permanent and aggregate interests of the community” as the good to be protected from faction, but representation is not an explicit representing or miniaturization of those interests. Representation is a process of refining and expanding public opinion, much as a refiner removes dross from raw material to separate the valuable gold, so does the representative process offer a mechanism whereby the passions and immediate interests of the people can be broken down and removed so that the valuable – the consistent and long-term – interests of the community may be served.110 Representation creates a 109 Federalist 10, 76-77. Emphasis added. This process of refining popular opinion into public opinion is very different from Wood’s assessment of the process. According to Wood, the Federalist’s imagined as a “sort of ‘philosopher’s stone,’” that was “intended to transmute base materials into gold.” In Wood’s Madison, there is nothing of value in the people’s opinion and something magical has to happen in order to have an end product of value. I believe this denies the scientific mind of Madison, not to mention his life-long commitment to majority rule. For Madison, the opinions of the people are absolutely essential to popular government at the same time that they pose a grave threat to the people’s capacity to rule themselves and it is not magic, but a well-order regime based firmly in 110 123 public voice that is more just than the voice of the people themselves. Or, at least it has the potential to do so, but as the State governments under the Articles had shown, inversion of the principle seemed more likely. Again, this is another essential part of Madison’s theory of representation that is necessary but still not sufficient to the end of just government. The essential difference between the factious legislatures of the States and what Madison envisioned as a just national legislature “is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter.” Madison’s use of principally here has led some scholars, Banning in particular, to err in minimizing the importance of representation and its essential contributions to Madison’s belief that popular government, based in fundamentally flawed human nature, can ultimately be made to be just. The circumstance, of a greater number of citizens in the national government and a greater territory than in the States individually, as well as more expansive electoral districts within each State than the extant electoral districts of each State’s legislature, speak directly to the activating principles of faction: a larger territory makes unity more difficult by dispersing impassioned individuals and limiting the range of demagogues and factious leaders, and more citizens impedes actuation of factious motives. Furthermore, “[e]xtend the sphere, 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 the new science of politics that accomplishes the necessary refining. Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1998), 507. 124 in unison with each other.”111 Expanding the sphere does not change, or even moderate, human nature, but it presents significant impediments to the activating principles of faction which allow the other essential, but inadequate on their own, elements of Madison’s representational theory to produce their desired goods. “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.”112 The conjunction of extent and proper structure cannot be understated, and it explains Madison’s optimism both before and after the Convention, as well as the structural changes he helped make in response to the Great Compromise. In Madison’s reasoning, the extent of the sphere was there, creating the right circumstances, which just needed to be paired with the proper structure. Read so frequently in isolation, the desired effect of Madison’s republican remedy here to the systemic problems of popular government has been as frequently misread. In identifying the circumstances which tend to control the causes of faction presented by the providential extent of the Union, and arguing for the proper structure of representation – one derived from the people at different times, in different intervals, and at different institutional levels – but free to reason apart from their direct counsel, Madison presents a complex and robust account of how public opinion is formed and should rule in American government. Pitkin’s central challenge to the definition of representation, the spring at the heart of her inquiry, is that it is normative and not prescriptive: representation tells us what a representative is and how he or she became one, but it does not tell us what a representative does, or is supposed to do. But Madison here, in Federalist 10, tells us exactly what representation is and does. The purpose of representation is “to refine and enlarge the public views.” If representation is “re-presenting” anything – making present 111 112 Federalist 10, 78. Federalist 10, 79. 125 something that is otherwise absent, it is not the people in miniature, with their inherent predispositions toward faction, but the rational capacity of mankind. Both the instinct for faction and the capacity for reason are inherent parts of human nature in Madison’s account, and it is the process of representation, refinement through filtering and over time, that is the foundation of Madison’s faith in the future prospects of the republican government. But Madison does not let his faith turn into blind optimism. Madison does not believe that representation will fix republican government because it will empower élites and aristocrats to rule, or that it will create a class of citizens which, quite apart from the foibles of society will be able to exert the moderation and self-control which popular government had lacked under that Articles. Nor does Madison believe the proper structure for which he advocates will free republican government from any reliance on civic education and virtuous leaders. Nor is Madison’s praise of the extended sphere synonymous with the proliferation and maximization of varied and competing interests.113 These false ideas, which comprise a significant portion of the misreadings of Federalist 10, but by no means all of them, add an almost impenetrable patina of obscurity to the proper form and function of American representation by asking incomplete questions and looking in the wrong place for the answers. The right question is: what is the end of representation?114 And thus, what is representation’s necessary and indispensable contribution to Madison’s system of reasoning? Madison tells us that representation refines and enlarges the public views, and his rationale points to moderation and justice as the desired fruits of representation: public opinions are 113 These ideas are found in the work of Pocock, Wood, Diamond, Dahl, and all their derivatives. In short, to moderate and disseminate public opinion (braking faction is included in this process) and secure liberty in a levelled society. 114 126 refined and enlarged “by passing them through the medium of 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.”115 However, if the desired end is to eliminate the danger of temporary and partial considerations in favor of a just rule of law, why is it not sufficient to find the best man and make him rule?116 Why is it not sufficient to appoint the best lawyers to rule and make laws, or the largest landholders, or the best educated and most credentialed, and let them do it during good behavior? Each of these groups has a claim to rule based in excellence that seem to incline them against temporary considerations and in favor of stable rule since excellence requires no popular reauthorization. In sum, if wisdom is necessary to remedy the evils to which republican governments are subject, there seem to be more efficient ways of securing it than relying on the people. This line of questioning pushes all the way back to fundamental assumptions of republicanism and natural rights philosophy because, without clearly stating these assumptions, which are central to Madison’s reasoning, it is not possible to break through the patina of obscurity laid down by the literature. Madison believes in the central tenant of republicanism that the people are the best guardians of liberty, and he follows the natural right reasoning in Locke that finds all men endowed with certain inalienable rights, by nature, and the equal enjoyment and protection of these rights form the basis of and need for civil society. Representation is a natural extension of both theories, but natural right only explains why the basis of representation in the people rather than in some claim to excellence is just, and the republican commitment to the people as the 115 116 Federalist 10, 76. That’s a Plato joke. I know, it’s funny. 127 guard of liberty only explains the continued desire to base representation on the people, but it does not make the people good or their laws just. At the foundation of any republican account before Madison is Aristotle’s account of a tripartite society comprised of the one, the few, and the many. The project of political philosophy was to balance these classes of society, each with their competing claims to rule and different institutional bodies, in order to produce a stable government. In Britain, this trinity took the form of the House of Commons (representing the people), the House of Lords (representing the nobility), and the Monarchy (representing the divine claim of the king). No such class structure exists in America and the origins of power are derived from individual and equal natural rights, not established and unequal social classes. Therefore, the act of balancing power is very different: “[i]n framing a government which is to be administered by men over men,” and not by competing social classes, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next, you must oblige it to control itself.” The powers of government are separated to promote liberty. The powers of making the law, saying what the law means, and executing the law all come from the same source – the natural rights of the people, rather than the competing claims of the classes – and are placed in different hands to prevent them from being easily exercised by one faction. In transferring their power to a well-ordered regime, the people enable the government to control the governed; in separating the powers and offices of the government, the security of the people is re-enforced by increased vigilance of one office holder over another. “Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.” In so doing, the conflict of competing elements cancels out extremes, moderating not the representatives themselves, but public opinion, and keeping the exercise of power within its 128 rightful bounds. “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.”117 This process of “supplying, by opposite and rival interest, the defect of better motives” produces precisely the same effect Madison identifies as the circumstance of multiple parties and varied interests in an extended sphere where a variety of interests bumping up against one another redound to the public good.118 There is no need, or place, for class interests or class conflicts in Madison’s republicanism; his theory of representation is fully derived from the people. Had Madison been able to persuade his fellow delegates toward his preference for a national legislative veto, he would have had to make no changes in his representational theory. Drawing on the people in their most expansive sense provides the best basis to determine and develop public opinion, and the same reasoning is at work in placing a veto power over State legislation in the national legislature. This is not a sign that Madison was simply a nationalist in his earlier career, as has often been argued, nor is it, in the words of historian Paul Rahe, evidence in favor of “that ancient heresy recently revived by Gordon S. Wood…and Garry Wills…that Madison’s solution to the problem of faction was subordinate to the promotion of rule by an aristocratic or virtuous social elite.”119 The preferred textual evidence to refute this aristocratic claim, relied on by both Rahe and Banning, is Madison’s assertion in “Vices” that the electoral component of representation which will draw out the noblest characters is merely an 117 Federalist 51, 319. Federalist 51, 319. 119 Paul A. Rahe, Republics Ancient and Modern, 3 vols. (Chapel Hill: University of North Carolina Press, 1994) III, 275, fn. 60. 118 129 “auxiliary desideratum.” Diamond’s reading of this debate goes so far as to argue that civic education and public virtue are no longer necessary in Madison’s mechanisms of representation. In light of one of republicanism’s central tenants, that virtue in the citizenry is essential to the health of the republic, this derivative reasoning should be highly suspect, if not rejected outright, but it, along with the gentler arguments which reduce representation’s ability to draw out the noblest characters to an auxiliary benefit, have provided fertile grounds for the misreading of Madison as an interest group pluralist or that the expanded sphere – the size of the regime – is his only contribution. Madison’s theory of representation, as we have seen, involves much more than the election of representatives, but the passage deserves a complete citation: An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains; such as will at once feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.120 The selection of the purest and noblest characters of society is indeed an auxiliary good – the republic can work without them. But it can only work without them for a short (though indeterminate) period of time. “Enlightened statesmen will not always be at the helm,” but that does not mean that they will never be needed, or that their banishment is desirable.121 The passage so often cited to support minimizing the importance of the character of the representatives is, when read in full, clearly talking about the importance of properly constructed elections to securing the ends of representation in republican government. These purest and noblest characters provided this desired amelioration of republican government, not because they 120 121 Writings, 79-80. Federalist 10, 75. 130 are most energetic in pursuing their own interests, but because they are most likely to be more moderate and more interested in helping to determine and develop public opinion. Madison has very realistic expectations of human nature and thus relied on a number of auxiliary precautions in the institutionalization of representation, but his system would not work if there were never virtuous people to step into the role of representative. Madison’s belief that a national veto would produce substantively better political outcomes than the States were capable of producing on their own, even though both were based on the same people, is the culmination of the reasoning that informs his entire justification of the representative principle in the final draft of the Constitution. Representation, with its institutional mechanisms, temporal dispersions, and human filters, does nothing to change human nature, but it thwarts and breaks passionate popular opinion and changes it into a more disinterested and reasonable public opinion. “[T]he mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”122 The end of representation is to allow public opinion, based in the people and responsible to it at the same time that it is responsive to the permanent and aggregate interests of the community, the time and the space to rule. Though the concern for the rule of public opinion runs throughout Madison’s writings, the conclusion found here appears as a novelty in the context of the literature.123 This is, again, the product of the historical treatment of his work and the Anglophilic nature of his intellectual biographies. Returning to the five innovations in political science identified in Federalist 9, the first four (separation of powers, bicameralism, tenure for judges, and representation of the 122 123 Federalist 42, 264. The exception is the work of Colleen Sheehan, which will be discussed in the next chapter. 131 people) can be explained as derivations of English historical practice or political theory. And the fifth (enlarging the orbit), even though it is highlighted as a wholly unique addition to political science, has since been attributed to the influence of the Scottish Enlightenment, David Hume in particular, on Madison’s thought.124 Furthermore, Madison’s later writings, which make the importance of public opinion in republican government explicit, have been subsumed by the tectonic plates of nationalism and State’s rights which dominate the scholarly texts, and dismissed by scholars as more partisan than theoretical. But we have seen that Madison’s theory of representation, and his efforts to base the regime in the people at the same time as he sought to check their natural proclivities to excess and injustice, contributed to shaping the American concept of separation of powers and bicameralism in a way that is much more democratic – that is based on a society of equals – than England’s model ever offered. And we have seen that Madison’s concept of representation, and the good it offers in breaking the passions and impulses of faction is intimately tied to the circumstances produced by expanding the sphere of government. In short, Madison’s theory of representation and the idea that public opinion must rule in order for the regime to be just run throughout most of the major achievements of the new Constitution, though often in the background. Representation is only found in part in Locke, as is separation of powers, but not in the same form Madison ultimately expounds in the response to the Great Compromise. The same can be said of Montesquieu, whose arguments for the separation of powers and bicameralism are present in Madison’s arguments, but not in his reasoning. Hume does deserve some credit for helping Madison make his argument for the capacity of the extended sphere to help break faction, but neither his work, nor any of the others 124 In addition to Adair, see also Mark G. Spencer, David Hume and Eighteenth-Century America (Rochester: University of Rochester Press, 2005), ep. chap. 6, “Hume and Madison on Faction.” 132 who dominate the pages of Madison’s intellectual biographies, speak to Madison’s project as a whole, nor the centrality of public opinion in Madison’s theory of representation and the American Constitutional regime. Madison recognized that America was a fundamentally new regime, not only politically, but socially, and the social equality he saw and sought to protect throughout the process of framing the Constitution and throughout the rest of his life was at the foundation of all his theoretical and institutional innovations. The equal social state flows through all five of Publius’s identified advancements, informing their need and being improved by their existence. That the five advancements Publius identifies are found in the celebrated work of Alexis de Tocqueville and not Locke, nor any other British thinker, points to the source of the answers we need to fully understand Madison’s theory of representation and public opinion and its continued relevance. 133 The Processes of Representation Just as the modern literature on representation is incapable of explaining Madison’s theory of representation, so is the modern literature on Madison incapable of accounting for the reasoning of his later writings. We have already seen that by merely adding the reasoning and arguments present in Madison’s earlier writings to the texts the literature treats as largely selfsufficient, namely Federalist 10 and 51, we are presented with Madison’s deep commitment to the creation of a system which will allow public opinion the time and space to rule, but the full meaning of public opinion and how it is formed had not been fully explained yet in Madison’s thought by 1789, even though he had already been working through these questions for years. The dominant reading of Madison’s intellectual development in the literature is incapable of answering these questions on the meaning of public opinion in Madison’s theory of representation because it does not know that these questions exist. In focusing almost exclusively on Federalist 10 and 51 to explain Madison’s understanding of and goals for the new American regime, and turning almost exclusively to British sources to fill in the gaps in their deductive reasoning, modern scholars have created a Madison who desired a strong national government that would rule over a compound, federal republic, and sacrificed any public concern with civic virtue for the stability and longevity of a regime based in some understanding of interest group pluralism. Madison’s irrefutable break with his political allies of the Convention and ratification during the First Congress reinforces an easy-to-understand rationale beyond the more complex historical account explaining why Madison’s writings after 1790, with the exception of the Helvidius-Pacificus Debates and his arguments against the Alien and Sedition Acts, are, if not 134 unknown, then largely ignored: Madison simply changed his mind in response to political factors. The perpetuation of this narrative accomplishes a number of things at once: it allows Madison to be held as the philosopher of the Constitution in the Federalist Papers and ignored as a polemicist thereafter; it reinforces the pluralist reading of Madison’s thought by portraying the creator of the theory himself as a creature of interest and father of party;1 and it denies any theoretical basis for the arguments Madison made post-1790. This is a broad net to cast, and one that certainly disregards a great deal of nuance and disagreement between competing accounts, but it nevertheless captures the overwhelming majority of the literature. Madison’s theory of representation, which answers his principled concern that in a wellordered republic public opinion must rule, was not fully explicated in his contributions to the Federalist Papers, but the framework, and indications of its inspiration, are present throughout his contributions. Representation for Madison is not merely the appointment of one to represent many (whether that arithmetic be conceptualized as individuals or interests), or a transference of sovereignty from the people in their collective capacity to a body in their elected capacity, but the process whereby the principle of sovereignty is changed so that the natural rights of the individual are protected and secured at the same time that public opinion is allowed to rule. The Convention and ratification debates were about institutionalizing representation, creating the circumstances whereby a “modification of the Sovereignty” renders the just claims of the people to rule, derived from their natural rights, “sufficiently neutral between different interests and factions” and allows for both justice and liberty under popular control.2 Madison 1 Jefferson is commonly asserted to be the head of the Democratic Republican party, but Madison was its intellectual engine, as his own writings and Jefferson’s correspondence with Madison attest. 2 Madison, Writings, 79. 135 envisioned this process of institutionalizing representation as a one-time event that created a structure whose efficacy was derived from stability and veneration, but he did not believe that the work of balancing liberty and justice – in short, the work of maintaining a stable public opinion – would ever be done. This work of maintenance and balance, the communicative process of representation, is what is ignored in his later writings, but the basic forms of what he only fully developed later were present throughout the Federalist Papers. “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Even in civil society, even with the right institutions, a constant balancing is necessary. Madison continues: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker,” (N.B. strength is not the same as size in Madison’s reasoning, you can have a strong minority) “anarchy may as truly be said to reign as in a state of nature,” because force and not reason are the motive principle of law. In such instances where force and not reason rules, “even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves.” Thus, Madison concludes, in a well-formed regime, where the institutions do not allow for the ready dominance of the strong, “will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties.”3 This gradual inducement to surrender the claim to rule based on force in favor of rule based in reason, and taught by reason, is enhanced by the enlarged sphere of Federalist 10, which serves to break faction by reducing the opportunities for factious passions to be felt, and the 3 Federalist 51, 321-2. Emphasis added. 136 increased communication of Federalist 14, which will allow for the increased transmission of ideas and commerce: the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which part finds it so little difficult to connect and complete.4 This passage is worth citing at length because its very presence denies the efficacy of the arguments that would limit Madison’s theory of representation to the principle of size. Reading Federalist 10 with 14 only creates a paradox when placed in the context of the academic literature, not Madison’s own theory. Read together as a whole, it becomes clear that Madison seeks to use the extended sphere to prejudice certain types of communications and facilitate others: Extend the sphere, 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. Besides other impediments, it may be remarked that, 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.5 By making it more difficult to simply find people who agree with you, which is to say, by making it necessary to engage with people of “a greater variety of parties and interests,” Madison is arguing for a political psychology that understands man to be timid and malleable in his opinions 4 5 Federalist 14, 97-8. Federalist 10, 78. 137 when he feels alone in them and firm and recalcitrant when he knows many agree with him.6 The circumstances of the extended sphere, in Madison’s reasoning, force individuals to look and interact beyond themselves, a process which gradually moderates their opinions by reducing the opportunity for feeling factious passions. In Federalist 9, enlarging the orbit of the republican system is identified as a novel and distinct feature of the new American regime, and this is largely held to be Madison’s signature achievement. However, according to Madison himself, size is only part of the unique character of the American regime. [I]n modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentered, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics.7 The dual emphasis on “unmixed” and “extensive” is often passed over, but they are clearly different achievements. Madison emphasizes that this new regime is drawn from a society of equals, not disparate classes with competing claims to rule, as in European regimes. The extent of the republic, as well as its social foundation, are unique to the new regime for which Madison is arguing. The full implications of this social leveling are not readily visible in the context of British theoretical influences, but Madison, at the same time that he highlights the importance 6 This is idea is still the subject of contemporary research, most recently popularized by Thayer and Sunstein in Nudge. The thesis is present throughout the book, but the common assertion from survey data and studies is that if you want someone to start a new behavior, tell them that a majority of people are doing it. The worst thing you can do is tell them that most people are not doing it. Richard H. Thayer and Cass R. Sunstein, Nudge: improving decisions about health, wealth, and happiness (New York: Penguin Books, 2009). 7 Federalist 14, 95-6. Emphasis added. 138 of this social state, points to where we can find the theoretical framework necessary to understand the implications. In invoking modern Europe, Madison is clearly not crediting feudal Germany with the origins of representation, as Hegel does, or feudal England through contemporary England, as historically derived accounts like those of Cam and Wood do.8 The invocation includes modern England in its structural forms, but the true intellectual account of those forms does not come from England. It comes from France, by way of Montesquieu, and the theoretical arguments of how to structure representation in an unmixed society were all coming from France by way of several competing schools of thought of the French Enlightenment – all with their roots in Montesquieu’s thought. Before we can fully understand the purpose of Madison’s theory of representation, we must understand how the French Enlightenment influenced Madison’s understanding of the ends of the American regime. Evidence of the influence of French arguments is found throughout the Federalist Papers and is most clearly evident in his writings after 1790, but this influence is easily missed because the relevant background material has simply been ignored by American scholars for so long. Brant acknowledges the well-respected opinion Madison earned among the French during his service in the Congress of the Confederation, and Madison’s letters to Jefferson during the latter’s service in Paris contain many references to books by French thinkers Madison had requested or Jefferson had considered worthy of and had acquired for Madison’s consumption. In a famous letter written shortly after the Constitutional Convention wherein Madison describes the new constitution to Jefferson, Madison apologizes in the first paragraph for leaving the “duplicate” volume of the Encylopedie in Virginia and being unsure of 8 Rousseau, in Book III, chapter 15 of On Social Contract, credits feudalism in general as the origin of representation and does not distinguish between England and Germany. 139 when he will be able to return it. This paragraph is frequently omitted from copies of the letter reprinted in collections of Madison’s writings and yet is of particular importance here because the Encyclopdie was the book which set the terms of the debate within French political thought, and l’opinion publique – public opinion – was no exception.9 Thus, in short, if we are not familiar with the texts with which Madison engaged as he worked through the challenges of balancing liberalism and republicanism in a popular government, it is easy to pass over the relevant references as filler on the way to pull-quotes which can be made to support the popular, though incomplete and incorrect, accounts of Madison’s thought. With few exceptions, and those only being published in the last decade, the connection between Madison and the French Enlightenment, and therefore the terms of the debate which help frame Madison’s thought, has been lost to the literature. Nadia Urbinati stands alone in the field of representational studies with her work connecting French representational thought with the study of representation in popular government more generally. However, as worthy as her inquiry may be as an effort to integrate important and long-ignored source material into representational studies, it has three significant and insuperable deficiencies that render it of little use to our present inquiry. First, that the main thrust of her argument is to show democratic theorists that representation can be understood as a “democratic revision of Rousseau’s theory of popular sovereignty,” which is to say that representation and democracy are compatible ideas. The necessity of this thesis shows how far democratic theorists have moved from any shared understanding of popular sovereignty with Madison. Second, Urbinati’s primary French sources are used to develop an argument from a 9 PJM 10:206-219 James Madison to Thomas Jefferson, 24 October, 1787. 140 strand of French thought which Madison rebuts.10 Third, Urbinati’s insistence that democracy and representation share a common genealogy, again, inspired by the need to win modern democratic theorists over to the idea that representation and popular government are compatible, integrates well with the common historicist reading of representational studies and yet fails to explain the place of natural rights theory in producing a concept of representation that is wholly distinct from democracy as understood by Madison, or even Rousseau, to be the direct involvement of the people in the exercise of political power. The bare shelves of representational theory offer little recourse but to turn to scholarship dedicated to eighteenth century France, focusing particularly on the research examining the development of political ideas during that time. Historian Keith Michael Baker offers a succinct account of the development of the idea of public opinion in French political thought and argues that we should understand public opinion as a political invention and not a sociological development in order to properly understand its origins and implications. Public opinion, as an idea, underwent rapid changes in the mid-eighteenth century in France, transforming from “the flickering lamp of ‘opinion’…which reveals things only by conjecture and leaves them always in uncertainty and doubt” to, “[w]ithin the space of a generation,” “the unremitting light of ‘public opinion,’ the light of the universal tribunal before which citizens and governments alike must now appear.”11 The rapid change can obscure the origins of the idea, but Baker carefully slows down the process to show that public opinion was not the product of the people, but an idea of the Estates General – that is, the aristocracy, which was used to challenge the absolute power of 10 Nadia Urbinati, Representative Democracy: Principles & Genealogy (Chicago: University of Chicago Press, 2006) 25. 11 Keith Michael Baker, Inventing the French Revolution (New York: Cambridge University Press, 1990) 168. 141 the monarchy. This established a new form of political discourse in France which Baker calls the politics of contestation, and in a matter of years the king was fully involved in the more public form of discourse necessitated by this political form. “But by accepting the logic of a politics of contestation in this way,” Baker explains, “the royal government unwittingly conspired with its opposition to foster the transfer of ultimate authority from the public person of the sovereign to the sovereign person of the public.”12 This seismic shift in the French regime raised two questions: “How did the French think about the eruption of this new politics of contestation within their theoretically ‘absolute’ monarchy? What did they think of its implications for social and political order?”13 Montesquieu’s Spirit of the Laws appeared in print at the beginning of this fundamental change within the French regime and his work offers an answer to the first question, and inspired most of the debate over the second. Though far from a consensus, the general feeling among the French was that the English model was dangerous and corrupt. Montesquieu himself, Baker argues, was not an unqualified proponent of the English regime.14 In the context of Montesquieu’s full account and his evident admiration of the English constitution, Baker argues that it is important to “remember the strong sense of the term ‘admire,’ which implies wonder and amazement rather mere approbation.”15 In this sense, it becomes clear that imitation need not follow from admiration. 12 Baker, 172. Baker, 173. 14 See also, Paul A. Rahe, Montesquieu and the Logic of Liberty: War, Religion, Commerce, Climate, Terrain, Technology, Uneasiness of Mind, the Spirit of Political Vigilance, and the Foundations of the Modern Republic (New Haven: Yale University Press, 2009), 41-2, 96-100. 15 Baker, 178. 13 142 Moving beyond the politics of contestation themselves to the question of what does the shift in the sovereign principle do to the social and political order, Montesquieu, from the start of The Spirit of the Laws, points to a dangerous outcome: [F]undamental laws necessarily assume mediate channels through which power flows; for, if in a state there is only the momentary and capricious will of one alone, nothing can be fixed and consequently there is no fundamental law… In a few European states, some people had imagined abolishing all the justices of the lords. They did not see that they wanted to do what the Parliament of England did. If you abolish the prerogatives of the lords, clergy, nobility, and towns in a monarchy, you will soon have a popular state or else a despotic state… In order to favor liberty, the English have removed all the intermediate powers that formed their monarchy. They are quite right to preserve that liberty; if they were to lose it, they would be one of the most enslaved peoples on earth.16 In Montesquieu’s conception of the separation of powers – and it must be emphasized that these powers are not only political, but social as well – without the distinct and privileged classes through which political power can be channeled, the regime is structurally set up to maximize the exercise of despotic power. A levelled society built on equals is as incapable of enjoying the stability of fundamental law as a society ruled by an absolute tyrant. In consequence, the English hold their liberty because of their moeurs,17 not because of their institutions. Montesquieu’s starting assertion that a levelled social state is inherently inimical to liberty sparked a fierce debate in French political thought that continued for well over a century. 16 Montesquieu, The Spirit of the Laws, eds. & trans. Anne M. Cohler, Basia C. Miller, Harold S. Stone (New York: University of Cambridge Press, 1989), I.2.4, 18-9. 17 mores 143 Madison’s public writings on Montesquieu are almost all written as correctives to popular misreadings of the text and, since they are not in venues conducive to nuance, are more disparaging than Baker’s careful reading of a Montesquieu that is at once amazed by English liberty and deeply skeptical of its replicability. 18 Even without explaining Madison’s precise understanding of Montesquieu, Baker’s account is both worthy reading on its own and particularly relevant here because it marks the starting point of a political question that is not present in the English theory of Madison’s time, and yet essential to Madison’s political thought in general and his theory of representation in particular. Is liberty sustainable in a society of equals?19 Madison seems to share Montesquieu’s assumption that liberty in a levelled society is, in its most natural state, untenable, which is why restructuring the political order properly to secure liberty and maintain equality is both difficult and essential. However, despite this common starting point, and another important intersection on the question of intermediate powers, Madison never builds explicitly on Montesquieu’s conclusions to develop his own theories – Montesquieu is a starting point, an arrow pointing the way, but nothing more. Historian Annelien de Dijn, inspired by the ongoing debate among nineteenth century historians over the incompatibility of republicanism and liberalism, has found that the terms of 18 Madison was not the only Founder to use Montesquieu in such a manner. Hamilton, in Federalist 9, also invokes Montesquieu to correct a popular but incorrect reading of his text, but does not build his theory explicitly on Montesquieu. 19 The weighting which Montesquieu gives his two conclusions – that the people of England are free and their liberty is to be desired, and that the institutions and regime of England are structured for maximizing despotism – seems to indicate that that the liberty of the English people is on tenuous ground at best because the inadequacy of the institutions will win out over mores. I equivocate to a great degree because I dislike summarizing Montesquieu into one sentence, however, Montesquieu’s answer to this question which stands at the start of the French Enlightenment seems to be a firm no. I believe this is why Madison never built a positive argument, as far as I can find in my own studies, derived from Montesquieu’s thought, even though there are a number of intersections at crucial junctures. If Madison cites Montesquieu, it is to correct a misunderstanding of him or to point to an inadequacy. As we will see, this fits well with the French tradition. 144 this debate were set well before, in the development of arguments first made in Montesquieu, and continued up through Tocqueville.20 The Jacobin legacy of revolution obviously looms large in the historical treatment of the nineteenth century France, but the emphasis on unity and popular sovereignty was not the only strand of French political thought. In response, de Dijn offers an account focused on the development of a French line of thought concerned with the “division and fragmentation of political power,” not dissimilar to Baker’s politics of contestation, though intentionally institutionalized for a variety of different ends. These arguments, which began with Montesquieu, grew from “the positive view of intermediary bodies, such as the aristocracy,” and continued their development as a coherent political doctrine form there.21 A full exposition of de Dijn’s argument, and the complexities of laissez-faire versus democratic, republican-inspired versus aristocratic liberalism, will easily lead us far from our inquiry into Madison’s theory of representation. Furthermore, a detailed examination of the historical sweep would lead to several temporal difficulties as a number of relevant thinkers were Madison’s contemporaries, and distinguishing timelines of development in each French thinker’s thought, as well as their interactions with Madison, is a project worthy of Madison’s next intellectual biographer, but not one necessary to the present inquiry. It is sufficient to note that de Dijn’s well-constructed narrative, and the question which she identifies at the heart of the debate over these competing conceptions of liberalism – is liberty possible in a levelled society? – provide an essential framework with which we can begin to understand the French influences of Madison’s thought as anything more than the Jacobin revolutionary-ism so dominant in the 20 Annelien de Dijn, French Political Thought from Montesquieu to Tocqueville: Liberty in a Levelled Society? (New York: Cambridge University Press, 2008). 21 De Dijn, 8. 145 standard accounts of French thought of the period, and why Tocqueville found in America a regime which was at once distinct from both France and England but still at home with his own political thought. The exceptional – in every sense of the word – work of Colleen Sheehan fits well within de Dijn’s framework, and reveals Madison’s thorough studies of the arguments surrounding public opinion developing in the French political thought of the late eighteenth century.22 Sheehan’s account of Madison’s engagement of the ideas of the French Enlightenment begins with Montesquieu. Madison’s writings in the early 1790’s reveal that his theory of republican government cannot be understood simply or even primarily within the context of the philosophy of Montesquieu – or Hume or Locke – or any of the British thinkers who relied on Montesquieu’s analysis. Indeed, his theory can only be accurately grasped if the distinctions he marked out between Montesquieu and himself are fully taken into account.23 This assertion is clearly borne out in Madison’s own writings, where the invocations of Montesquieu – the Federalist Papers and the Helvidius-Pacificus debates in particular – are used 22 The accounts of De Dijn and Sheehan are far from exhaustive, and the body of thinkers from which each draw shows remarkably little overlap. I think this does no discredit to their research nor their theses. Part of the lack of correlating sources can be explained simply by the focus of their studies – a broad strokes history will look at different thinkers than one that focuses explicitly on what Madison read – and the rest The field of political thought from this period, which was clearly influential to both Madison and Tocqueville, is largely unexamined in any political context beyond historical accounts of the French Enlightenment. I believe my work here shows that the influence of French thought was definitely present at the Convention, and Sheehan’s work deftly shows the more developed influence the thought had on the exposition of those nascent principles during Madison’s involvement with the early administrations of the American regime. This French connection, and all its implications, are (with the exception of references to partisan love of the French among early republicans) wholly absent from both popular and scholarly historical accounts of the Founding and the early republic. 23 Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (New York: Cambridge University Press, 2009), 62. 146 as correctives to popular but incorrect readings of the text. Just as de Dijn observes, the questions to be debated come from Montesquieu, but answers are to be found elsewhere. In search of these answers, Sheehan identifies two schools which create a spectrum of thought on public opinion within the French tradition: at one pole, representation is inimical and inherently opposed to public opinion; the other, what de Dijn calls “aristocratic liberalism,” contains accounts of varying importance for representation focused on the balancing of the regime. The writings of Jean-Jacques Rousseau offer the most succinct example of the first school.24 Just as Rousseau gives two accounts of human nature, one just by nature and one corrupted by social development; so too he gives two accounts of public opinion. In its pure form, public opinion is the “immovable keystone” of the regime and “the most important of all” forms of law. “It is the true constitution of the state. Every day it takes on new forces. When other laws grow old and die away, it revives and replaces them, preserves a people in the spirit of its institution, and imperceptibly substitutes the force of habit for that of authority.”25 In contrast to this natural and organic integration of public opinion into the social and political order, Rousseau finds the origins of human depravity and slavery in the idea that a representative or representative body can have any part in creating, shaping, or refining public opinion.26 For Rousseau, public opinion is not the process of debate and civic engagement, but a natural, prepolitical (it never comes up for vote) sentiment that informed his idea of the general will; public opinion prevents the corruption of modern politics. 24 For discussion of Rousseau and Montesquieu, see Paul A. Rahe, Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect (New Haven: Yale University Press, 2009), esp. chap. 3. 25 Jean-Jacques Rousseau, The Basic Political Writings, 2nd edition, trans. & ed. Donald A. Cress (Indianapolis: Hackett Publishing Company, 2011), On Social Contract II.12, 191. 26 Rousseau, On Social Contract, III.15. See also, II.1. 147 Against this conception of public opinion that denies a place for public debate, Sheehan identifies a second group of thinkers who envisioned a more public, open, and engaged role for public opinion. “The concept of public opinion,” influenced by their arguments for an expanded role, “thus took on a more politically dynamic meaning, conveying the notion of a deliberative and authoritative voice within society that results from communicative activity.”27 The ultimate goal of this communicative activity is to allow reason to rule, and for this reason this group of thinkers maintained that social unity was more important than balancing powers through conflicting classes, as Montesquieu had argued. This emerging theory of public opinion did not only seem to develop in anticipation of a levelled society, but it assumed a levelled society.28 Furthermore, moving from the social implications to the political, “Montesquieu himself readily admitted, the model of balanced government…derives its energy from the agitated play of the passions and thus is closed to the guidance of reason.”29 If reason is to rule, these thinkers argued that public opinion, not factious passions or the force of will, could be the standard of legitimate public decisions. “According to their conception,” Sheehan explains, public opinion is not constituted by a mere aggregate of the sentiments of the populace; it is not synonymous with “popular opinion(s).” Thus their view must be differentiated from Rousseau’s perspective. It must also be distinguished from the contemporary view, which conceives of public opinion as discoverable in daily polling aggregates. This distinction is critically important for those of us today who seek to understand the eighteenth century concept of public opinion. Theirs was not primarily a theory of political popularism; public opinion was not a spontaneous outpouring by the people or an ephemeral tide of popular sentiments and uneducated views.30 27 Sheehan, James Madison, 64. Though not discussed here in any detail, this is another strand of thought that explains why the French were so well primed for what happened in the French Revolution and thereafter. Baker’s work is excellent on this question. 29 Sheehan, James Madison, 67. 30 ibid. 28 148 Popular opinion of this school of French thought is something derivative, something that unifies, and in its theoretical form something that demonstrates reason in its approximation to mathematical fact more than mere consensus. This conception of public opinion creates particular duties for the administrative bodies of the government, as expressed by Jacques Necker: We must be very careful not to confound that public opinion, which I have delineated, with those rumours of a day, which commonly take their rise in particular societies only, and under certain circumstances. It is not to such a decision that a man capable of being at the head of an extensive administration ought to give way. On the contrary, he ought to know how to despise it; that he may remain firmly attached to that public opinion, which is respectable under all its forms, and which alone is rendered sacred, by reason, time, and a universal conformity of sentiments.31 As we have seen, Madison’s theory relies greatly on reason and time, but Madison rejects the idea of a universal conformity of sentiments. For Madison, such conformity is against human nature and the fundamental principle of liberty. It may be possible to reduce politics to a science, but not mathematics. Furthermore, while Madison shares the idea with these French thinkers that public opinion must rule, his rejection of unity as a primary end of public opinion opens up a space for popular, republican government that was not present in the dominant arguments of French thought, which still argued for a constitutional monarchy. Sheehan’s research makes it clear that Madison, especially in his writings post-1790, was deeply influenced by the debate over the meaning and role of public opinion in the French Enlightenment, and Sheehan’s list of these influential ideas comprehensively refutes the common 31 as quoted in Sheehan, James Madison, 68. 149 assertion that Madison’s break with Hamilton, as well as the intellectual battle between the Federalists and Democratic Republicans, was merely political. The break was over welldeveloped and well-established ideas – just not English ones. Madison shared with the French theorists the understanding that public opinion is the source of stability and authority in a nation. Like them, he learned from Montesquieu and others the importance of public morality in forming the conscience of a nation. Also like them, he associated the nation with the people or the public. Thus, he agreed with many of their criticisms of Montesquieu, especially the condemnation of hereditary and corporate orders in government. He too rejected the design of the British constitution, wherein two major parties are encouraged in their incessant contest for political power; he believed that an amelioration of factions and enlargement of partial interests cannot occur in a party system driven by two major competing economic and social interests. He agreed that there is a distinction between mere will and reason, between ephemeral popular passions and public opinion, and that public opinion should not be equated with the mere will of the majority, Public opinion is not the sum of ephemeral passions and narrow interests; it is not an aggregate of uninformed minds and wills. Rather, Madison believed that public opinion results from a process that refines and transforms popular views, sentiments, and interests. His goal, like theirs, was to achieve political rule grounded in the “reason of the…public” or “reason of society.”32 The unique circumstances of the new American regime – its size, moeurs, and levelled social orders, combined with these extensive debates over public opinion, presented Madison with the material he needed to create a theory of representation that would reconcile the competing demands of liberty and justice by submitting them to reason. Sheehan’s development of Madison’s understanding of public opinion leads her to make a six-part distinction in her understanding of Madison’s theory of republicanism, with each part being “designed to minimize the factious effects of communicative activity and draw forth its 32 Sheehan, James Madison, 79-80. 150 didactic potential. These are: the extent of the territory, representation, separation of powers and checks and balances, federalism, the influence of the literati on public opinion, and the influence of public opinion on the government.”33 In the context of Sheehan’s account this delineation makes sense and allows her to look at the many threads in Madison’s thought which contribute to the development of public opinion. However, in the context of Madison’s understanding of representation, Sheehan’s distinctions – especially between representation and the creation of public opinion – are counterproductive and could serve to re-enforce the Progressive critique of Madisonian representation as a cold, Newtonian mechanism. Furthermore, she struggles to maintain the distinction as she expresses the full consequences of Madison’s republicanism. In Madison’s schema, “the great principle of representation” denies the people a direct agency in lawmaking, but it also functions as the “great mechanical power in government” by which the will of the society converges at a common center and directs the government to the common good. Representation is thus a vehicle for the collection and modification of society’s will.34 Madison’s understanding of representation is much more than the mere appointment of representative bodies, and the expansive nature of Madison’s conception of representation is understood when one considers the ends of Madison’s theory of representation. The end is not a transference of authority, but to first, anchor all government action in the authority of the people, and second, both minimize the factious effects and facilitate the rational aspects of communication in the development of individual and public opinion. Sheehan rightly concludes: Madison’s goal, then, is not properly understood when it is reduced to the distillation of the people’s will by representatives in Congress. To the degree that he sought to distill the popular will through the establishment of “an equilibrium in the interests & passions of the Society,” it was for the purpose of creating the 33 34 Sheehan, James Madison, 85. idem., 99. 151 conditions necessary to refine and enlarge the opinion of the society. Madison’s insight into how territorial size contributes to the achievement of the just majority involves more than a technical dependence on the people via their representatives in Congress. It also entails, to the extent possible, the tempering of factions impulses and the elevation of opinion within the society by means of a dynamic “commerce of ideas” at the level of government and throughout “the entire body of the people.” Madison’s “modification of the sovereignty” is not merely the alteration of individual state interests and popular views by the national legislature. It is also the modification of public opinion itself.35 The distinction between representation and public opinion which Sheehan makes throughout her account, and reemphasizes here, does nothing to serve the distinction she carefully draws between modern and Madisonian public opinion. For Madison, public opinion “sets bounds to every government, and is the real sovereign in every free one.”36 Though Madison does not introduce a precise distinction through new terminology, there remains in his thought an ever present distinction between “public opinion” simply, which at times he identifies as veneration, customs, and popular or passionate opinions, and “public opinion” as the result of the representative process, that has been durable over the course of time and in the minds of both the people and their representatives. This distinction, between types of “public opinion” and not between representation and public opinion itself, exists because the end of representation is to give shape and force to public opinion – to legitimize it, not create a sovereign claim through a popular appeal outside the “proper structure of the union.” Sheehan relies too much, as Banning before her, on Madison’s supposed identification of representation as an “auxiliary desideratum,” but Madison never limits representation to such a small sphere. 35 36 idem., 100. PJM 14:170 Public Opinion 152 The “auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the society the purest and noblest characters which it contains.”37 Representation is more than an election, and its integration into all the principles of the Constitution shows it to be far more important than auxiliary good. A method of elections which will allow the best characters to be chosen will certainly benefit the communicative process of representation, but it is far from the whole of it. Ultimately, Sheehan’s distinction between representation and public opinion is a useful pedagogical device to help impress upon the reader the expansive nature of Madison’s systematic thought, but insistence on the distinction undermines Madison’s own account of how public opinion is not only processed through representative channels, but subordinated to time and reason, and legitimated by that process. Sheehan’s focus on Madison’s writings after 1790 presents a second difficulty, but only within the context of the literature. Again, her efforts to unveil the theoretical framework of Madison’s National Gazette Essays (Party Press Essays), and his Notes on Government, are without question, exceptional and long overdue. However, in the context of the long-standing assertion of a partisan-influenced shift from Federalist to Democratic Republican, Sheehan’s work could be manipulated to serve an argument where Madison’s alleged change is presented as less partisan, but no less dramatic because it marks a shift from British to French theoretical principles.38 Madison’s understanding of public opinion and how it operates in modern republican government, and the new American regime in particular, were explained in his 37 Writings, 79. The recent publication date of Sheehan’s work explains why no such thesis yet exists, and the persistent popularity of conceptualizing Madison as a flip-flopper, to evoke modern political terminology, leads me to believe that such a thesis will appear sooner rather than later. 38 153 writings post-1790, but Madison’s expansive conception of representation, and therefore his understanding of public opinion, were an essential part of his reasoning throughout his time at the Convention and while he was contributing to the Federalist Papers. Sheehan’s work, combined with the framework offered by de Dijn, allow us to see the French influence that was an essential part of Madison’s reasoning well before he broke with Hamilton and the Federalists. As we have already seen, in Federalist 10 and 14, Madison lays out an argument about how the right extent and proper structure of the regime can limit the types of communication that encourage faction while creating the circumstances which benefit the moderating aspects of communication and contribute to the rule of reason. In Federalist 47 through 51, Madison lays out an even more expansive argument that not only offers an overview of the separation of powers, but answers a number of arguments against Madison’s use of conflict as a source of moderation. Most of these counter arguments come from the French tradition, and Madison accordingly lays out his argument in a format familiar to his fellow students of the French Enlightenment. Madison begins Federalist 47 by turning to Montesquieu to answer an accusation that the Constitution does not sufficiently separate the powers of each branch: “The oracle who is always consulted and cited on this subject” of “the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct” “is the celebrated Montesquieu.” This praise, in light of the next sentence, is underhanded and follows the well-established French Enlightenment tradition of crediting Montesquieu with pointing the way at the same time acknowledging that Montesquieu did not make it there himself: “If he be not the author of this invaluable precept in the science of politics, he has the 154 merit at least of displaying and recommending it most effectually to the attention of mankind.”39 Madison deftly continues this minimization by summarizing Montesquieu’s argument in a manner that sounds like praise, and then uses that summation to dismiss any need to examine Montesquieu’s text: this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.40 The remainder of the argument of Federalist 47 is then, accordingly, drawn from history – the practical experience of England and several of the colonies – and not Montesquieu’s text. Without any scholarship that explicitly examines how Madison understood Montesquieu, there exists, nonetheless, evidence for two competing readings. First, one could argue that Madison had not studied Montesquieu extensively, but had become familiar with his ideas through second-hand accounts – the vast majority of those from the French tradition, which were not flattering. The remainder of these second-hand accounts would have cited Montesquieu in favor of English modes and orders – something Madison would have found equally unflattering. Second, one could argue that Madison had studied and understood Montesquieu, and in doing so was careful to recognize the importance of his ideas, while at the same time distancing himself from Montesquieu more because of what he was understood to 39 Federalist 47, 298. See de Dijn, esp. chaps. 1-2; Sheehan, James Madison, esp. chap. 3. Page 66 contains a quote from Peuchet, whose sentiment I have seen repeated frequently in the primary French sources I have read: “The great art of this philosopher…is that even when he is mistaken, he compels the reader to think, and shows him the road that leads to truth.” 40 Federalist 47, 298-9. 155 have said than what he actually said. Montesquieu was the most cited theorist leading up to the ratification of the Constitution, by all sides involved. It is impossible that he was understood correctly by all who cited him, and this popularity explains Madison’s measured praise and corrective interpretations. There can certainly be a sliding scale between these two arguments, and though there is textual evidence for both conclusions, Madison seems to come down firmly toward the latter pole than the former. Baker provides a fascinating account of Montesquieu’s qualification of his praise of England, especially Montesquieu’s distinction between the people and the regime, and the use of the conditional tense in most of his discussions about the regime: Montesquieu would praise the English regime if he could, but their political forms when separated from the moeurs of the people incline to the most insidious forms of despotism, so Montesquieu praises the liberty of the English people instead of the English regime.41 That conditional tense is again at play in the precise passage Madison summarizes as “the mirror of political liberty” in The Spirit of the Laws: “There is also one nation in the world whose constitution has political liberty for its direct purpose. We are going to examine the principles on which this nation founds political liberty. If these principles are good, liberty will appear there as in a mirror.”42 Madison’s qualification of his praise of Montesquieu – he “appears to have viewed the Constitution of England as the standard” – mirrors Montesquieu’s own qualification – “If these principles are good, liberty will appear there as in a mirror” – and, in light of the argument that Madison produces thereafter, the qualification must have been intentional. Montesquieu’s account of England shows that its modes and orders – even its motive principle – do not fall into the traditional three forms of 41 42 Baker, esp. 173-8. Montesquieu, XI.5, 156. 156 government Montesquieu identifies in Book I, namely a republic, monarchy, or despotism, and this induces Montesquieu to examine England as an entirely new form of regime. “From this point of view, then, Montesquieu’s tendency to discuss the government of England simply as one of a ‘free people,’ without explicitly identifying the country by name, suggests an effort not simply to describe English politics but to conceptualize it in more abstract terms as a type – indeed, as an entirely new type – of polity.”43 By evoking Montesquieu and then dismissing him, Madison sets up a political masterclass, drawing on the sympathies of those who believe the English form, with its institutionalized contentions, is the mirror of political liberty, while simultaneously alerting those with a more complete understanding of Montesquieu that he would be introducing a new type of polity, one that could use “the politics of contestation,” rightly understood, to be both free and equal.44 Having established, from historical examples, that the maxim of separated powers only requires that the powers not be wholly held by another branch, not that they be wholly separated from one another, Madison takes up the question of how to defend separated powers necessary for a free government. “Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?” This was the means used by the State constitutions under the Articles, and “experience assures us, that the efficacy of the provision has been greatly overrated.”45 Tyranny can come from a democratically elected legislature as easily as it can come 43 Baker, 177. Madison’s understanding of liberty necessitates self-government, but this was not the case among the French. This contrast needs to be explored more, along with many other topics, but the necessity to defend self-government was unnecessary to Madison’s argument and thus this distinction between Madison and the French goes unstated. 45 Federalist 48, 305. 44 157 “from the overgrown and all-grasping prerogative of an hereditary magistrate.” Madison distinguishes the new legislative branch created by the Constitution from other examples of legislative power more generally, but the only natural limit that protects a legislative chamber from “feel[ing] all the passions of the multitude,” is limiting the size of the chamber, but the small size necessary would violate republican principles. Without other means, like those mentioned in Federalist 10 and 14 of encouraging rational communicative processes between citizens themselves, between them and their representatives, and breaking factious passions at the individual and district level, representative government is an “elective despotism.”46 In an improperly structured legislature, “passion never fails to wrest the sceptre from reason,” Madison explains later in another discussion on the distribution of representatives that meets the needs of Federalist 10 and 14. “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”47 Practical experience, Madison concludes, shows that “parchment barriers” are insufficient to stop the factious nature of man and the encroaching nature of power from establishing a tyrannical concentration of power. In examining Madison’s argument from the perspective of French political thought, we see that his understanding of human nature is fundamentally different from all the major schools of French thought during Madison’s time, who in some varying degree believed than man was both good and rational, and that the end of political discourse was a rational unity, a scientific activity of fact gathering, analysis, and finally submission, not unlike one submits to gravity. In contrast to this assumption of natural accord, Madison sees that man’s liberty and his factious opinions are intimately related, and man cannot be rid of one without being rid of both. “Liberty 46 47 Federalist 48, 308. Emphasis in original. Federalist 55, 340. 158 is to faction what air is to fire, an ailment without which it instantly expires.”48 Furthermore, Madison rejects the assumption inherent in the French idea of évidence, that a free mind will naturally seek unity of opinion.49 “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 reciprocal influence on each other.” Self-love, which can be understood as either amour-propre or amour de soi, with significant distinctions between the two, is a particularly potent idea within the French tradition that strikes against the idea that men are simply, or even ultimately inclined to be, rational beings. “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.”50 Free men are not unified men, and Madison’s implicit rejection of the French understanding of human nature necessitates the argument of Federalist 49 and 50. Madison’s lengthy rebuttal of Thomas Jefferson’s idea that frequent appeals to the people offer the appropriate remedy to preventing tyranny serves to challenge two particular threads of French thought: the strictly democratic school which became more radical and fed the rhetoric and bloodshed of the French Revolution, and the philosophical ideals of Turgot, Condorcet, and similar physiocrats (derived from the Greek, meaning for the government of nature) who argued in favor of mathematical models for the formation of public opinion and unity in the exercise of political power. Jefferson’s theory is not without reason, Madison explains, since “the people are the only legitimate fountain of power…it seems strictly consonant to the republican theory to 48 Federalist 10, 73. See Sheehan, James Madison, chap. 3; 150-1. 50 Federalist 10, 73. 49 159 recur to the same original authority” not only when enlarging or diminishing governmental powers, but also in deciding between contested claims made between the established powers. Madison’s response brilliantly blends English common law reasoning with French public opinion theory and further serves to distinguish his understanding of a democracy and a republic – two regime types which, in his understanding, both draw from the people as the only legitimate fountain of power: [I]t may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. 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. 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.51 Madison’s efforts to secure a “modification of Sovereignty” sufficient to create a “disinterested & dispassionate umpire in disputes between different passions & interests,” would be completely thwarted by Jefferson’s understanding of popular sovereignty and his desire to invite the people in their collective capacity to frequently introduce their own passions and interests into the 51 Federalist 49, 311-2. 160 structure of the regime. Public opinion, understood as anything other than the outcome of the full representative process, cannot be distinguished from a passionate, and therefore most likely unreasonable, opinion. The “total exclusion of the people in their collective capacity” which distinguishes the American republic from democracy and the failed representative models of ancient Greece discussed in Federalist 63, highlights the distinction between the immediate opinions of the people and public opinion. Public opinion, understood as the product of the representative process, is reasonable and disinterested because it is carefully shaped by the filtering out of factious passions, and the necessity that it persist through time. If it were a nation of philosophers, as Turgot and his students assume, this division between public opinion and the people would not be necessary, but the realities of human nature, borne out over centuries by the most impeccable oracle of experience, teach us that man’s prejudices do not favor reason. If man is going to submit to “[t]he mild voice of reason, pleading the cause of an enlarged and permanent interest,” it will be because “the extent and proper structure of the Union” checked the negative aspects of human nature and allowed reason to come to the fore.52 Having refuted the democratic strands of thought derived from American experience and French theory, Madison begins his account of the proper means by which tyranny can be prevented in popular government with an oft ignored caveat: “Without presuming to undertake a full development of this important idea I will hazard a few general observations which may perhaps place it in a clearer light, and enable us to form a more correct judgement of the principles and structure of the government.”53 Madison does not intend for this to be an exhaustive account, nor is the caveat connected to indications that the idea has been discussed, or 52 53 Federalist 42, 264; Federalist 10, 79. Federalist 51, 318. 161 fully developed elsewhere in the Federalist Papers – as both he and Hamilton do for other ideas in a number of other essays. The culmination of this argument found in Federalist 47 through 51 only outlines the principles behind the structure and leaves plenty of room for Madison to elaborate on those principles at a later date. “In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty,” Madison says in terms which bring his thesis back to the Montesquieuian starting point and the question of how to maintain liberty in a levelled society, “it is evident that each department should have a will of its own.” This will is not created through corporate orders or social classes – which include the interest groups of modern pluralism and the academic accounts which incorrectly assert that Madison’s theory depends on multiplying interests – but in the various and distinct modes through which each branch of government is drawn from the people. “Were this principle rigorously adhered to,” Madison observes, “it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.” It seems possible to read this idea of total separation so far that each office would be elected separately, with its own election that would serve to isolate it from the phenomenon of down-ballot voting, competing claims of mandates, etc. that are common place when multiple offices are being voted on simultaneously. Madison seems to have something of this genre in mind as he remarks, “[s]ome difficulties, however, and some additional expense would attend the execution of it.” In addition to those logistical difficulties, we must not forget the political circumstances which called for participation of the States in the electoral process, as well as the peculiar qualifications necessary for offices like the 162 judiciary, where electoral skills and legal competency are least likely to correlate. Madison reminds us here that theoretical purity is not the standard that will secure liberty, and in the face of political realities, “[s]ome deviations…from principle must be admitted.”54 In addition to a proper foundation on the people, “experience has taught mankind the necessity of auxiliary precautions.” The first relies on structuring the interaction of powers in such a way that the nature of the persons holding the powers combats the encroaching nature of power itself. This requires “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…Ambition must be made to counteract ambition.” Again, Madison’s understanding of human nature based in the realities of human experience rather than the desire for the philosophical ideal is the key to understanding why he argues that conflict is not only capable of producing liberty in a levelled society, but is essential to that end. 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.55 The “policy of supplying, by opposite and rival interests, the defects of better motives,” is an instantiation within the highest structure of government of the idea at the foundation of the social contract: “that the private interests of every individual may be a sentinel over public rights.”56 In a levelled society that desires to be free, the difficulties which must be overcome 54 Federalist 51, 318. Federalist 51, 319. 56 ibid. Madison takes this theory farther than Locke did, but I believe that Locke certainly points in this direction with the people’s continued right for an appeal to heaven. 55 163 make that conflict absolutely essential: “you must first enable the government to control the governed; and in the next place oblige it to control itself.” Madison’s use of control here is not an invocation of force, but of a submission to reason. Excluding the distinction between the executive, legislative, and judicial powers, which he discussed earlier in Federalist 47, Madison limits the remainder of his argument to two principles: bicameralism and federalism. In his explication of bicameralism, Madison does not adopt the arguments so common in modern representational reasoning – that the people and the States are being represented with their own distinct chambers, or that the people were being represented twice – once actually, and once virtually – which is to say that the people can only be represented once, so interest is what is represented in the second chamber, etc. This anachronistic reasoning, derived from the representational theory of Burke (who was a contemporary of the Revolution and the Founding, though was not cited by the Founders, even those who did go so far as to argue for State representation)57 and the historical practice of England, is essential to the development of Pitkin’s expectations-based definition of representation: “he who represents a person must act in accord with that person’s wishes; he who represents an interest must act in accord with that interest.”58 Madison denied this representational imperative, which Pitkin finds at the philological heart of representation. Madison did not engage in the precise speech of philosophy characterized by defining the duties of the office holder according to the title of the office, and so 57 See Lutz, The Origins of American Constitutionalism. Burke is not present because Burke had not yet become Burkean, as Lutz’s references to future usage of the idea indicate, see 83 and 89. Furthermore, Madison never subscribed to the argument that the Senate was representing the States. His most vociferous complaints about the Senate were always that it represented the people unequally by apportioning the body according to State equality. He made changes to the role of the Senate in response, but what the Senate represented, and to whom the Senate was responsible, never changed in Madison’s theory, even if he feared too much dependence on the States’ legislatures. 58 Pitkin, The Concept of Representation, 185. Emphasis added. See also, Seitz, The Trace of Political Representation, esp. chap. 2; Wood, Representation in the American Revolution: Revised Edition. 164 his writings offer little in the way of pull quotes on the distinction between representatives, delegates, and trustees, all terms essential to Pitkin’s argument. Pitkin’s use of these terms creates a false dichotomy which creates a scale of representation with delegates who merely execute the will of the people, on one side, and trustees who act in what they determine to be the best interests of the people, regardless of their will, on the other. Suzanne Dovi places Madison at the heart of this dichotomy of “competing and contradictory demands on the behavior of representatives.” Historically, the theoretical literature on political representation has focused on whether representatives should act as delegates or as trustees. Representatives who are delegates simply follow the expressed preferences of their constituents. James Madison (1787–8) is one of the leading historical figures who articulated a delegate conception of representation. Trustees are representatives who follow their own understanding of the best action to pursue. Edmund Burke (1790) is famous for arguing that[:] Parliament is not a congress of ambassadors from different and hostile interests, which interest each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole… You choose a member, indeed; but when you have chosen him he is not a member of Bristol, but he is a member of Parliament.59 There is no evidence offered to corroborate her assertion that Madison “articulated a delegate conception of representation;” it is treated as common knowledge. The long-standing reduction of Madison’s thought to a limited number of pull quotes explains his status in Dovi’s account as the provincial, “I’m here for the great district of X alone” sort of thinker who is the foil to Burke’s philosophy of representing national interest alone. The existence and reasons for this long- 59 Dovi, Suzanne, "Political Representation", The Stanford Encyclopedia of Philosophy (Spring 2017 Edition), Edward N. Zalta (ed.), https://plato.stanford.edu/archives/spr2017/entries/political-representation/. 165 standing tradition of misreading Madison have already been explained. What is of particular importance here is why is such an account of Madison – one that treats his theory of representation as a mere reduction of the people in number to better channel their will, and then bases this account on the assumption of common knowledge rather than his text – necessary? Without Madison as the foil to Burke, the dichotomy of wills – the will of the people versus the will of interests – that has become the language of modern politics would not be possible, at least without recognizing its theoretical and structural origins as extra-constitutional.60 Under a simple delegate conception of representation, the types of communication which Madison seeks to nurture or prevent in Federalist 10 and 14 are irrelevant, as is any concern with refining and enlarging public views or public opinion, because the end of representation is to embody the will of the majority of each district. The representative’s duty under this delegate model is to the constituents who elected him/her and no one else, and Congress exists as a collection of individuals who are re-presenting interested parties but not authorized to compromise their constituent’s own stated interests. Congress, under this delegate model, is a place of last resort, where wills, having been reduced through the process of district and State appropriations, are pitted against one another to see whose will will win out. “Ambition must be made to counteract ambition,” in this reading, means the will of whoever elected one representative must combat the will of whoever elected another representative. This is, all assumptions of common knowledge aside, clearly not Madison’s conception of representation. 60 This false account of Madison is necessary to maintain the modern accounts of interest group pluralism that are also incorrectly attributed to Madison. I believe it is helpful to see that at this juncture, but an exploration of this idea will take me farther afield than necessary. 166 Madison, the one we come to know through his own writings and not the false traditions of our academic fathers, distinguishes public opinion from the will of the people, the former representing reason and the latter, in its raw form, passion. In a popular government, the will of the people will always win out, and Madison understands the statesman’s challenge in founding a regime to direct that will so that it is more likely than not to submit to reason. For Madison, the representative’s duty is to reason. The representative is responsible to the people, and may lose his/her position if the people are displeased with his/her decisions, but the duty of the representative remains to reason. Madison’s full account of representation does not fit cleanly within the delegate/trustee dichotomy because he did not conceptualize the process of representation as a battle of wills (even if that could take place between individuals) and he rejects the idea that representation is the making present of some willful thing that is otherwise absent. In Pitkin’s terms, Madison’s theory of representation could be said to be the making present of reason where it is otherwise absent, but fitting Madison into Pitkin’s framework does a disservice to the robust nature of Madison’s account. Madison’s theory of representation is about fostering the kinds of communication that brings the people to willingly submit to reason. Tocqueville, being well-read in the representational questions of the French Enlightenment, could see what the entire field of modern representational studies cannot: the delegate model is the antithesis of Madison’s theory of representation. A custom that in the end will make the guarantees of representative government vain is spreading more and more in the United States: it very frequently happens that electors, in naming a deputy, lay out a plan of conduct for him and impose a certain number of positive obligations on him from which he can in no way deviate. It is as if, except for the tumult, the majority itself were deliberating in the public square.61 61 Tocqueville, I.II.7, 236. 167 The dichotomy in Madison’s understanding of representation is not between delegates and trustees, but first between reason and passion as forces inherent in human nature, and ultimately between liberty and equality, as the fundamental human desires. Our natural equality makes us especially preoccupied with justice – which is why we form societies. Madison reminds us of this dichotomy as he closes his argument in Federalist 51: “Justice is the end of government. It is the end of civil society. It has been and ever will be until it be obtained, or until liberty is lost in the pursuit.”62 That man would rather be equal, even in equality’s opprobrious forms, than free, highlights the dangers of letting passion, and not reason, rule, and the true balancing act Madison seeks to maintain in securing liberty in a society of equals. Having distinguished how the modern representational framework fails to account for the problems Madison is trying to resolve with his conception of representation, we can return to his account of bicameralism and federalism. Bicameralism is necessary, not to represent the people twice, or two distinct sources of political power once, but to prevent the consolidation of power in what historical experience has shown to be the most powerful and passionate branch of government: In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.63 Bicameralism institutionalizes two distinct principles of action, one of a shorter duration which conceptualizes responsible government as responsive to the people and one with a longer view 62 63 Federalist 51, 321. Federalist 51, 319. 168 which understands “due responsibility in the government to the people” to mean reasonableness of laws and stability of national character.64 In both cases, however, each branch is responsible to the people, and the time and space created for the right types of communication by the different principles of action (representing the people once, but at different times and with different institutional incentives) inclines the final product of representation toward more rational and just ends. Because the national legislative chambers are apportioned according to two different modes, it is possible to argue that bicameralism is a product of the federal republic.65 Madison’s disagreement with this idea, as well as the preference for unicameral legislatures among a number of prominent French thinkers, was total and this portion of his argument in Federalist 51, combined with his explanation of the principles of the Senate in Federalist 62 and 63 provide a firm account of why he understood bicameralism to be “essential to the preservation of liberty.”66 Though Madison acknowledges that the apportionment of the Senate means that “no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States,” he never treats this as an unqualified good. This “complicated check” is an “advantage” that can be “injurious as well as beneficial.” Madison never treats bicameralism as a product of federalism, even though the apportionment of the Senate does institutionalize the federal principle: In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality 64 Federalist 63, 381. We see that many States adopted a similar model after the Constitution was ratified and apportioned their Senates according to counties and other geographical or administrative districts rather than population. See Dixon, Democratic Representation. 66 Federalist 51, 318. 65 169 ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.67 The apportionment of the Senate is not a product of theory, as Madison explicitly states, and the mode of apportionment only influences its likely actions and not its raison d’être: it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but ‘of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.’ A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America.68 That voice of America is the voice of the people, whom, the apportionment of the Senate notwithstanding, is still what the Senate represents, and that bicameralism is necessary because popular government is not immune from the same tyrannies that define despotic regimes: “liberty may be endangered by the abuses of liberty as well as by the abuses of power.”69 Federalism, institutionalized in the distinction between enumerated State and Federal powers and the apportionment of the Senate, provides two distinct advantages to a people who desire to rule themselves. First, federalism provides “a double security…to the rights of the people” by dispersing power and giving those who hold office the “constitutional means and personal motives” to protect the balance. “The different governments will control each other, at the same time each will be controlled by itself.” Second, beyond “guard[ing] the society against the oppression of its rulers,” federalism provides a republican mode of “guard[ing] one part of the 67 Federalist 62, 376. Federalist 62, 375. 69 Federalist 63, 386. 68 170 society against the injustice of the other part.”70 Madison explains: “There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority, that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”71 The first method violates the fundamental principles of Madison’s understanding of republican government, as it establishes a mechanism whereby the majority could always be prevented from ruling. A recourse to this method also assumes that liberty in a levelled society is impossible. Madison believes liberty and equality can be balanced, but only when structured properly. Thus Madison’s framework here in the Federalist Papers and in the Constitution is not established to thwart the majority, but to give the majority the strongest possible inclinations toward reason while still allowing it to ultimately rule. “In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.”72 Following Diamond’s lead, many scholars have argued that this means Madison was in favor of multiplying interests, and that more interest groups means more security. Admittedly, if read in the limited context of Federalist 10 and 51, Madison does seem to be arguing that the expanded sphere is about finding more interests to bring to Congress so that there can be more security in the irascible competition of interests and sects. However, as we have already seen from reading beyond Federalist 10 and 51, Madison believed no such thing. Madison rejects the French 70 Federalist 51, 320. idem, 320-1. 72 Federalist 51, 321. 71 171 assertion that unity is central to the ends of politics for the same reasons that Diamond’s must be rejected. A multiplicity of interests is the natural product of men living free. There is no need to create or encourage interest artificially, and limiting the causes of diverse interests in the name of unity only reduces liberty. The structure of Madison’s whole argument throughout the Federalist Papers is that in order for there to be liberty in a levelled society, the people and their passions must be excluded from the direct exercise of power, the opinions of the people must be made to look beyond themselves and their own immediate interests, and the interactions between representatives and their own passions must be structured in ways that are optimized to maintain a balance of power between the branches and conducive to reasonable and just outcomes whenever possible. The representative process thus begins with the individual at the local, district level, as the expanded sphere in which that individual experiences not just political, but economic and social life as well, brings him/her into contact with interests and ideas beyond his/her own. It is then further refined through the process of electing a representative, and refined and expanded once more as that representative is exposed to the ideas of districts beyond his/her own. Finally, the representative returns home and the reciprocal process of communication concludes and starts again, perpetually refining and enlarging the public views through a variety of political and societal channels with the ever-present hope that the mild voice of reason will ultimately rise to the top. This is an expansive conception of representation, one much larger than mere elections, that follows the development of public opinion from its germination in the freedom of the individual, into popular opinion, and through social and political channels until it yields public opinion – and is all present in the Federalist Papers. 172 Madison is explicit in Federalist 51 that he does not “presum[e] to undertake a full development” of the ideas discussed, and Madison’s project of Federalist 47 through 51 was not simply to answer French critics. The Federalist Papers were explicitly written to persuade fellow Americans, and New Yorkers in particular, of the virtues of the new Constitution, and the work’s popular audience and method of circulation precluded exhaustive philosophical discussions. Nonetheless, the theoretical depth of the papers is remarkable and even though Madison’s audience was not the French, the structure of his argument reflects a deep understanding of the problem which they sought to remedy. This underscores, again, how well-read Madison was in the problems and contemporary approaches to nation building, and the skill with which he blends ideas from disparate sources to create a cogent, uniquely American solution for the American republic. As the institutions and processes Madison envisioned as the response to the problem of balancing liberty and equality came to life in the first administration of the new American government, Madison reflected constantly on the principles in action, and by the Spring of 1791 he “allotted” himself a “little task” of addressing those principles more thoroughly than he had in the Federalist Papers.73 “The best provision for a stable and free Govt.,” Madison writes at the beginning of his Notes on Government, “is not a balance in the powers of the Govt. tho’ that is not to be neglected, but an equilibrium in the interests & passions of the society itself, which can not be attained in a small Society. Much has been said on the first. The last deserves a thorough investigation.”74 Significant portions of what Madison writes as a result of this investigation, first 73 PJM 13:405. PJM 14:158-9. The editors of Madison’s papers call this “Notes for the National Gazette Essays,” rather than “Notes on Government.” I follow Sheehan’s renaming convention explained in The Mind of James Madison, 4- 74 173 in the more philosophically inclined “Notes on Government,” and then in the “Party Press Essays” published for popular consumption in the National Gazette from 1791-1792, are concerned with the operation of public opinion. Understandably, in the context of Madison’s developing intellectual and policy battles with Hamilton, the unifying theme behind all the notes and essays is the distinction between the principles of the American and British regimes. Sheehan observes a strong connection between the development of a few of Madison’s arguments, most notably the one in his essay “Public Opinion,” and the works of Hume. Like Adair before her, Sheehan deftly shows the similarity in language between Madison and Hume’s accounts and presents a compelling picture of a Madison engaged directly with Hume’s thought as he is writing.75 That connection is undoubtable. However, the same conclusions Madison reaches are possible by reading Montesquieu, as Baker’s reading shows, and Madison chooses to cite and speak directly on Montesquieu, not Hume, in both the “Notes on Government” and “Party Press Essays.” This preference for using Montesquieu as his public foil can be explained in a couple of ways, none of them mutually exclusive. First, according the work of Donald Lutz, who has organized the citations to philosophical texts throughout the Founding and ratification debates, Hume was a source much preferred by the Federalists and could have been received with a partisan tenor. Montesquieu, on the other hand, was not only the most cited thinker during the second half of the eighteenth century, but he was also cited in relatively equal proportions by both Federalist 6. Colleen A. Sheehan, The Mind of James Madison: The Legacy of Classical Republicanism (New York: Cambridge, 2015). 75 See Sheehan, The Mind of James Madison, 49-53. Sheehan also sees the connection with Montesquieu and offers substantial insight into the theoretical disagreement Madison has with Montesquieu. See 63-77. 174 and Anti-Federalist arguments.76 He was a thinker who was held in respect by all and would not raise immediate partisan objections. Still, since Madison was publishing his essays in a party newspaper, a desire to not appear overtly partisan cannot explain the whole of his choice of foil. Second, Montesquieu’s account points to a number of important questions about the nature of public opinion and its relationship with liberty, questions at the heart of the French Enlightenment tradition, but not present in Hume’s thought. Third, Montesquieu’s theoretical use of conflicting interests as the basis of public action allows for the greatest contrast between Madison and his theory of public opinion. From Madison’s arguments, these are all likely explanations. Madison’s account of the motive principle of different regime types in “Spirit of Governments” mirrors in form and corrects in content the same account Montesquieu offers in the Spirit of the Laws: Montesquieu has resolved the great operative principles of government into fear, honor, and virtue, applying the first to pure despotisms, the second to regular monarchies, and the third to republics. The portion of truth blended with the ingenuity of this system, sufficiently justifies the admirations bestowed upon its author. Its accuracy however can never be defended against the criticisms which it has encountered. Montesquieu was in politics not a Newton or a Locke, who established immortal systems, the one in matter, the other in mind. He was in his particular science what Bacon was in universal science: He lifted the veil from the venerable errors which enslaved opinion, and pointed the way to those luminous truths of which he had but a glimpse himself.77 76 Donald Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988), 142-5. 77 PJM 14:233 Spirit of Governments 175 This particular criticism is explained by Madison in the “Influence of Public Opinion on Government” section of “Notes on Government,” and again in the Party Press Essay “British Government”: If the British Government be as excellent as represented, it is less because so in itself, than because so in the public opinion. Its boasted equilibrium is preserved more by this cause, than by the distribution of its powers. If the nation favored absolute monarchy its representatives would at once surrender the public liberty; if republicanism, the monarchical branch could not maintain its independence. If the public opinion was neutral only, the ambition of the House of Commons would easily strip the Prince of his prerogatives.78 This is Madison’s second explicit rebuttal of the common assumption that the separation of powers is the source of greatness of either the American or the British governments. Where does public opinion as a force fit within Montesquieu’s three operative principles? Montesquieu himself appears to have been unsure and, being equally unable to classify England according to one of the three forms of government (republic, monarchy, or despotism) or the three operative principles (virtue, honor, or fear), England appears as “a nation where the republic hides under the form of monarchy,” but is still neither of the two and, as Madison observes, is fully at the mercy of public opinion.79 Because England does not fit into any established category, Montesquieu slowly creates a new classification for this peculiar regime type, which, as Baker succinctly explains, in a reading that Madison appears to have shared: In this classification, based on a new distinction between ancient republics and modern commercial states, England becomes the very type of the modern state, free and individualistic, whereas the traditional French monarchy remains in the middle – the sentiment of honor being, in effect, the middle term between the 78 PJM 14:161-2, “Notes on Government”. Madison adds, “or the avarice of its members, might sell to him its privileges,” to the possible actions of the House of Commons, along with a more colloquial tone overall, in the essay “British Government.” PJM 14:201. 79 Montesquieu, Spirit of the Laws, I.19, 70. 176 civic virtue of the ancients and the egoistic individualism of the moderns. Thus a new classificatory schema – republic/monarchy/England – is superimposed on the old one – republic/monarchy/despotism – in the course of Montesquieu’s argument.80 Thus, with an added distinction between ancient and modern, the English seem to have substituted private interest for fear, and because of their moeurs they pursue liberty, but they have not simply replaced despotism as a possible regime outcome: “They are quite right to preserve that liberty; if they were to lose it, they would be one of the most enslaved peoples on earth.”81 Madison argues against this convoluted classification, as well as Montesquieu’s disapproval of opinion as a force in government, though not of his assessment of the English regime, and presents his own three-fold distinction in governments: force, private interest, and public opinion. The first form, “[a] government operating by a permanent military force, which at once maintains the government, and is maintained by it,” is the form of government “under which human nature has groaned through every age [and…] which still oppress it in almost every country of Europe, the quarter of the globe which calls itself the pattern of civilization, and the pride of humanity.”82 The second, which in Madison’s mind is clearly Britain, and the intention of the Federalist administration under Hamilton’s guidance, is “[a] government operating by corrupt influence; substituting the motive of private interest in place of public duty; converting its pecuniary dispensations into bounties to favorites, or bribes to opponents; accommodating its measures to the avidity of a part of the nation instead of the benefit of the whole[,]”with the 80 Baker, 177. Montesquieu, The Spirit of the Laws, I.4, 19. 82 PJM 14:233 Spirit of Governments. 81 177 intent to “support a real domination of the few, under an apparent liberty of the many.”83 The third is a government ruled by public opinion, “deriving its energy from the will of the society, and operating by the reason of its measures, on the understanding and interest of the society.” Madison spares no praise for this form: such a representative regime is the “republican 83 PJM 14:233. Neither Madison’s “policy of supplying, by opposite and rival interests, the defects of better motives,” nor his belief “that the private interests of every individual may be a sentinel over public rights,” are substitutions of private interest for public duty, though they can, and have, been read as such when read in isolation. Both of these ideas, expressed in Federalist 51, have the realization of the common good and public interest as the end of their operation. Yet, “common good” and “public interest” are both terms whose meanings are subject to a great deal of debate; I will not get into this expansive debate in my argument at large, but Madison’s perspective is important to understand. Madison’s essay “Fashion,” which recounts the peculiarities of the rise and demise of the shoe buckle industry in Western Britain, speaks first to the stability and independence of the agrarian life over that of manufacturing, but it also addresses the fickle nature of private interests and how, when presented as an economic argument, it is possible to confound private interest with a public duty. Because of a change in fashion, Madison explains, twenty thousand people are without work and therefore “almost destitute of bread, and exposed to the horrors of want at the most inclement season,” and then connects the cause of this calamity with the spirit of the regime: Here the dependence sinks to the lowest point of servility. We see a proof of it in the spirit of the address…Can any despotism be more cruel than a situation, in which the existence of thousands depends on one will, and that will on the most slight and fickle of all motives, a mere whim of the imagination. IV. What a contrast is here to the independent situation and manly sentiments of American citizens, who live on their own soil, or whose labour is necessary to its cultivation, or who were occupied in supplying wants, which being founded in solid utility, in comfortable accommodation, or in settled habits, produce a reciprocity of dependence, at once ensuring subsistence, and inspiring a dignified sense of social rights. V. The condition of those who receive employment and bread from the precarious source of fashion and superfluity, is a lesson to nations, as well as to individuals. In proportion as a nation consists of that description of citizens, and depends on external commerce, it is dependent on the consumption and caprice of other nations…The dependence in the case of nations is even greater than among individuals of the same nation: for besides the mutability of fashion which is the same in both, the mutability of policy is another source of danger in the former. The mutable nature of private interest, and its capacity to affect the lives of so many citizens, makes it an especially dangerous basis for government. As long as some benefits are being shared, such a system can sustain “the apparent liberty of the many,” but as soon as the private interest fails to be economically viable, it leaves all its dependents in various, though always opprobrious, degrees of servitude. The public crisis happened long before the collapse of the buckle trend; it was an inescapable consequence of the spirit of the government. This also indicates why Madison chose “Spirit of Governments” as the title to mirror and correct Montesquieu – the laws are derived from the regime, so the spirit of the government predates and informs the spirits of the laws. See PJM 12:257-9, emphasis in original. 178 government[] which it is the glory of America to have invented [and] the government for which philosophy has been searching and humanity been sighing.” 84 Thus we see that Madison makes a distinction between governments that are held up by popular opinion, like Britain, and governments that operate by public opinion, like America. Madison’s own footnotes in his “Notes on Government” reference Aristotle’s Politics where Aristotle discusses the impact of public opinion on the longevity of a regime and comes to the same conclusion that regimes, of any kind, which are popular with the people, last longer.85 This establishes public opinion as something outside the regime, at least in regimes of the first and second class, but not in the third.86 America is something unique because public opinion does not only support the motive force and operating principle of the regime, it is both. This is the spirit of Madison’s “genuine republic,” as opposed to Montesquieu’s faulty British model.87 Public opinion, in this genuine republic, is not the sum of interests, public sentiments, or ephemeral views. Neither is it the difference or remainder of a multiplicity of interests which are assumed to cancel one another out, the tipping point of plus one in the most basic popular political mathematics of 50% + 1. Public opinion is not a mathematical process. Conflict between interest and ideas does take place at various times during the formulation and assertion of public opinion, but it is not its fundamental, constitutive principle, which is to say, there are parallels between Madison’s theory and Montesquieu’s theory, insofar as representation and the need to keep separated powers separate intersect, but Madison’s theory of representation and his 84 PJM 14:234 Spirit of Governments. PJM 14:162. See Sheehan, The Mind of James Madison, 54-63, 135-6, for additional commentary as well as the citations from both Plato and Aristotle which Madison references in his notes. 86 This is my most significant distinction with Sheehan, again, as I have noted before. 87 Federalist 39, 237. 85 179 understanding of public opinion is not based in a mechanical, Newtonian conflict between the forces of interest. Recalling Madison’s three distinct spirits, public opinion is neither force nor interest.88 Public opinion is the outcome of a communicative process whereby the opinions of individuals throughout the regime are enlarged and refined until they comprehend “the understanding and interest of the society.” In the American regime, this third form of government where public opinion rules rather than sustains, public opinion is only cognizable through certain channels of communication. Public opinion can be shaped outside of these channels, by the “literati,” by various social customs, and even by the government itself, but public opinion is only cognizable when it has been stable and durable enough to pass through all the necessary structural channels of the regime. Without passing through those channels, public opinion as a force on government is indistinguishable from the popular, passionate appeals which have tortured, racked, and generally kept popular governments in “a state of perpetual vibration between the extremes of anarchy and tyranny” for approximately all of human history.89 Madison’s essay “Public Opinion,” published a few days after the ratification of the bill of rights, emphasizes this process. He begins with the dual nature of public opinion, first its general nature, then its nature under the third form. “Public opinion sets the bounds to every government, and is the real sovereign in every free one.” In both cases, “[i]n proportion as government is influenced by opinion, it must be so, by whatever influences opinion.” In the case of the British regime, this means you can lack the institutional strength necessary for separated 88 Labelling Madison as a Newtonian thinker is a favorite criticism of Progressive thinkers. Sheehan observes that it was also a criticism that Madison levelled at Montesquieu himself. See Sheehan, The Mind of James Madison, 70-3. 89 Federalist 9, 66. 180 powers, but still have the moeurs of separated powers, and the powers will remain effectually separated while at the same time you can develop a theory of representation like Burke’s, which bases the end product of representation on the perceived interests of the nation and not the will of the society. However, in the American regime, a genuine republic where the will of the government is derived from the will of society, the proportional influence of popular opinion is 1:1. “This decides the question concerning a Constitutional Declaration of Rights, which requires an influence on government, by becoming part of public opinion.”90 The process of adding the Bill of Rights to the Constitution was relatively quick, but the twelve proposed amendments went through the institutions and processes of representation, and ten of them were accepted. They thereby became, as legitimated through these official processes, a part of public opinion and continue to inform American moeurs today. Though this instantiation of public opinion as the spirit of the government is essential to genuine republicanism, it is not without its dangers, especially to liberty. A stable and free government is not possible in a small society because a multiplicity of interests is necessary to secure liberty.91 The extended sphere, and the subsequent multiplicity of interests, is necessary to develop the critical mass of communication that provides the engine for refining and enlarging popular opinion into public opinion, but the same process of communication that can moderate private opinion can also overpower and subordinate it. “The larger a country, the less easy for its real opinion to be ascertained, and the less difficult to be counterfeited; when ascertained or presumed, the more respectable it is in the eyes of the individuals. – This is favorable to the authority of government.” That public opinion can be counterfeited or presumed – that is, an 90 91 PJM 14:170 Public Opinion. See PJM 14:158-9, “Notes on Government”; Federalist 51, 321. 181 illegitimate claim to rule can be made through official channels – presents a significant challenge to the longevity of Madison’s theory. But it gets worse: “For the same reason, the more extensive a country, the more insignificant is each individual in his own eyes. – This may be unfavorable to liberty.” 92 Not only is homogeneity of opinion destructive to liberty, but man’s natural inclination is to submit to an opinion when it is shown to be more popular than his own. This psychological understanding at the foundation of Madison’s reasoning remains the focus of modern ground-breaking social science research; if you want to influence someone to change a behavior, the easiest and most effective way is to tell them that a majority of the people are doing it.93 Size alone, expanding the sphere without ensuring that it is properly ordered and well regulated, opens popular government to new versions of old vices that render citizens more submissive than free. For this reason, “[w]hatever facilitates a general intercourse of sentiments,” and the expansive nature of sentiments – not just opinions, ideas, etc. – must be emphasized here, such as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty, where these may be too extensive.94 The solution to this danger, the new challenge to the freedom of thought presented by the extended sphere, is increased communication on the human condition and the common good between citizens and “the cultivators of the human mind – the manufacturers of useful knowledge – the agents of the commerce of ideas – the censors of public manners – the teachers 92 PJM 14:170 Public Opinion. This also explains why the language of modern politics involves the appeal of a majority. Silent majority, moral majority, etc. 94 PJM 14:170, Public Opinion, emphasis in original. 93 182 of the arts of life and the means of happiness.”95 These forms of enlightened communication, combined with the reciprocal flow of representatives back and forth from their districts to the legislative chambers contribute to the formation of legitimate public opinion at the same time that they suffocate counterfeit claims. These types of communication require a well-ordered and well-regulated regime. “A representative republic chuses the wisdom, of which hereditary aristocracy has the chance,” Madison proclaims.96 Maintenance of this choice, consistently choosing liberty, requires a commitment to both the institutional forms and processes of representation. It “requires a more than common reverence for the authority which is to preserve order thro’ the whole.”97 This rationale offers further depth to Madison’s lack of faith in parchment barriers in Federalist 48 and his argument that veneration of the Constitution is essential for its success in Federalist 49. “All power has been traced up to opinion. The stability of all governments and security of all rights may be traced to the same source…The most systematic governments are turned by the slightest impulse from their regular path, when the public opinion no longer holds them in it.” Respect for the institutions and processes of representation are essential to both the security and liberty of the regime. “How devoutly is it to be wished, then, that the public opinion of the United States should be enlightened; that it should attach itself to their governments as delineated in the great charters, derived not from the usurped power of kings, but from the legitimate authority of the people.”98 And in this enlightenment, this elevated state of communication on the common good and public interest, it becomes clear what Madison means when he says that individual interest 95 PJM 14:168, “Notes on Government. PJM 14:179 Government. 97 PJM 14:192 Charters. 98 PJM 14:192 Charters. 96 183 must be the sentinel over public rights: “Liberty and order will never be perfectly safe, until a trespass on the constitutional provisions for either, shall be felt with the same keenness that resents an invasion of the dearest rights.” Our individual interest should be to choose liberty and the institutions and processes necessary to its perpetuation. “Charters” offers the best evidence that Madison distinguishes public opinion as something distinct from the government, and the language is there to make such a case. However, though it seems unjust to call his use of the term public opinion imprecise, his usage in this essay is not as clearly delineated as it is elsewhere in his arguments. The ultimate meaning, however, remains the same. Public opinion, as it comes to be known through the representative process is distinct from any other type of popular claim made in the American regime. By passing through the institutions and processes of representation, an opinion becomes public opinion (writ large, one could say) and carries a rightful degree of legitimacy. Outside of this process of conferring legitimacy on public opinion, there is no mechanism for distinguishing between reason and passion. Only the passage of time, the processes of communication, and the proliferation of the idea through all the branches of government at both the State and National level can provide a legitimate distinction between reason and passion. Madison’s concern that “public opinion” should attach itself to the charters, in this understanding, is an expanded appeal to venerate and respect the choices necessary to maintain liberty – something distinct from the rational outcome of a deliberative process. This returns us to the problem Madison identifies first in “Vices”: if the people are the problem at the base of the regime, how can a new regime be formed with the same people and yet attain a different outcome? The structuring of the regime, the variation of time throughout that structure, and the processes of communication all provide significant answers, but even with these mechanisms, the 184 people must still consistently choose liberty – an exercise of their power bounded by the demands of justice – over license – the unchecked rule of the majority. “The people who are the authors of this blessing, must also be its guardians.”99 This requires “subjecting the will of the society to the reason of the society; by establishing permanent and constitutional maxims of conduct, which prevail over occasional impressions, and inconsiderate pursuits,” and in pursuit of this willful submission of majority rule to reason and justice, Madison tells us that even “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.”100 Madison’s final rebuttal of Montesquieu on representation comes in his essay “Parties.” The Constitution does not acknowledge parties – it is always individuals, as citizens of a State, and not groups or interests that are represented – and Madison’s theoretical writings decry their factional nature. However, just as differences of faculties, properties, and opinions are the natural outgrowth of men living free, so too, “[i]n every political society, parties are unavoidable. A difference of interests, real or supposed, is the most natural and fruitful source of them.”101 Madison is explicit, however, that even though these parties are natural, “[t]he great object should be to combat the evil” of political parties. Madison lists five mechanisms whereby this fight against the institutionalized factionalism of party can be waged. The first four are beyond the scope of our present inquiry, though they share the general principle that the ends of the laws should be justice and equality, which will serve to reduce the differences that inflame partisan passions. The fifth uses Montesquieu’s reasoning that competition lends itself to liberty, but it is, 99 PJM 14:218 Government of the United States. Federalist 49, 312. 101 PJM 14:197 Parties. 100 185 at best, a tertiary mechanism. Each party’s passionate pursuit of its own interests can be moderated, “[b]y making one party a check on the other, so far as the existence of parties cannot be prevented, nor their views accommodated. – If this is not the voice of reason, it is that of republicanism.”102 Reason calls for justice and equality, but knowing that passions are never expunged from human nature, no matter how rational the regime may be, the checking of natural parties is a political expediency. “From the expediency, in politics, of making natural parties, mutual checks on each other, to infer the propriety of creating artificial parties, in order to form them into mutual checks, is not less absurd than it would be in ethics, to say, that new vices ought to be promoted, where they would counteract each other, because this use may be made of existing vices.” In a clear repudiation of Montesquieu, and Madison’s perception of Federalist policies, Madison decries this theory of balancing society by exacerbating natural distinctions and forming social classes “as little the voice of reason, as it is that of republicanism.”103 Madison’s theory of representation – even his whole theory of republicanism – is based, not in contention, and not in the cold, mathematical balancing of competing interests as opposite sides of an accounting ledger, but in the encouragement of the right forms of communication which invite individuals to think beyond their own, immediate interests and account for the circumstances of citizens with disparate interests in the formulation of their fundamental ideals and beyond. This communicative process requires the conflict of ideas, opinion, interests, passions, and ambitions, not the contention of institutionalized factional interests. 102 103 PJM 14:197 Parties. PJM 14:198 Parties. 186 The will of the people is the live wire of republican government. It powers it, and it can overpower it. The institutions of representation are essential to focus that power to just ends and protect the people from the dangers of their own passions and immediate interests. The processes of representation – from the first formulations of an individual’s own opinion, through the local community, on into the expanded sphere, and then into the representative institutions – are essential to the moderation of passions and immediate interests that protect the institutional structure from claims of justice as the force of an interested majority rather than justice as the reason of society. Notwithstanding Madison’s numerous disagreements with Montesquieu, they were in agreement on the importance of fundamental law to the maintenance of liberty: “fundamental laws necessarily assume mediate channels through which power flows; for, if in a state there is only the momentary and capricious will of one alone, nothing can be fixed and consequently there is no fundamental law.”104 Madison’s institutions replace Montesquieu’s meditate channels and intermediate powers of social and political inequality with a fundamental assertion of equality and a dispersion and division of political power. Madison’s communicative processes, by moderating opinions and encouraging respect for reason, delegitimize the “capricious will” of “momentary” majorities and offers a stability in social equality that Montesquieu never believed possible. Madison’s conception of representation is firmly founded in the belief that liberty and justice are attainable goods in a society of equals, as long as the institutions are well-ordered and the processes well-regulated. And in this belief, and the arguments he makes to establish its feasibility, Madison demonstrates a unique synthesis of French and British thought – which rejects both the French assumption of unity and the British 104 Montesquieu, I.2.4, 18. 187 insistence on institutionalized contention – that culminates in a representative system with institutions and processes capable of maintaining both liberty and equality. 188 The Jurisprudences of Representation History, as we have already seen in part, has not been kind to Madison’s understanding of representation. As we saw in Tocqueville’s observation from his visit to America in 1831, a cultural understanding of interested majorities conceptualizing their representatives as delegates who should be bound with instructions to secure their interests rather than deliberate on the common good was spreading through the nation. This custom, Tocqueville predicted, would “make the guarantees of representative government vain” by reintroducing the passions of the people back into the direct operations of government at the expense of the communicative channels which are more conducive to reason. Instead of expanding and enlarging the public views, this conception of representation follows Cam’s line of reasoning and merely reduces the size of the people to a manageable number; “It is as if, except for the tumult, the majority itself were deliberating in the public square.”1 This delegate conception of representation has continued as a significant thread of American representation, most notably in the Grover Norquist “Taxpayer Protection Pledge,” which, since 1985, has bound many Republican party office holders to never consider tax increases as a part of public policy development.2 However, neither this particular deviation from Madison’s theory, nor any of the others, should be understood as Madison’s failure to adequately communicate his theory to the general public. “It will not be denied,” Madison reminds us, “that power is of an encroaching nature.”3 1 Alexis de Tocqueville, Democracy in America. Harvey C. Mansfield and Delba Winthrop, eds. and trans. (Chicago: University of Chicago Press, 2000), I.II.7, 236. 2 See http://www.atr.org/about-the-pledge (accessed March 1, 2017). The website touts the quote from Newsweek magazine, “It has transformed American politics.” Indeed it has, because this is not the manner in which representation is supposed to work. 3 Federalist 48, 305. 189 Representation, placed in a simple – and perhaps, cynical – political context, is the channeling of power in favor of one outcome over another. Madison understood this, and his conception of representation seeks to prejudice reason over passion, long-term liberty over immediate interests. Historical practice, Madison shows at length, proves that if we do not make this choice, then popular governments will ultimately represent self-destructive ends. As the Constitutional intuitions and processes he worked to create took effect in the early American republic, channeling public opinion and political power toward ends unfavorable to some, the encroaching nature of power, like pressure in a water line, moved through the system and sought to exert more pressure where the boundaries holding it back were weakest. As these battles played out over the first hundred and fifty years of the republic, the search for pressure points which would allow one interested party or another to control took the shape of arguments over suffrage.4 Then, as the progress of equality moved toward universal citizen suffrage, the process of American political development (understood in an expansive sense, capturing the rhetoric, the historical usage, and the legal language which all defined the debate in the public mind and mores) inextricably bound the right of suffrage – the right to vote – with the concept of representation. The right to vote meant that you were a part of the representative process, you were being represented. The progress of equality toward universal suffrage forced the encroaching nature of power to look elsewhere to exert itself, and the pressure applied began to shift from suffrage to apportionment. In response to the force of this political power struggle in the realm of apportionment, two competing bodies of jurisprudence have emerged. 4 See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States, Revised Edition (New York: Basic Books, 2009). 190 Facilitated in large part by population shifts from rural to urban areas, and enabled by a growing number of State legislators who were increasingly representing fewer and fewer people each year and did not want to redraw their districts out of existence, the apportionment of both the State and National legislatures quickly grew unbalanced. From 1790 until the 1840 census following Madison’s death in 1836, the percentage of Americans living in rural communities only dropped from 94.9 to 89.2 percent.5 The next fifty years would see that number decline to 64.9 percent. By the time the first reapportionment cases began to appear before the Supreme Court of the United States, first dismissed on a variety of other grounds in 1932, and then dismissed specifically as a non-justiciable political question in Colegrove v. Green (1946), the rural percentage of the American population had shrunk to 43.5 percent.6 By the time the Court took up the reapportionment question as a judiciable one in Baker v. Carr (1962), the rural percentage of the American population had fallen to 36.9 percent, or 30.1 percent under the Census bureau’s new metric.7 Either way, the decline was precipitous, and the political ramifications of the apportionment inequalities became more apparent with each passing election. 5 US Census Bureau. “Population: 1790-1990.” Census.gov https://www.census.gov/geo/reference/urbanrural.html (accessed March 7, 2017). Used for all population percentage statistics. 6 Colegrove v. Green, 328 U.S. 549 (1946). See also, Robert G. Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics (New York: Oxford University Press, 1968), 105-114. 7 The Census Bureau explains the change as follows: In censuses prior to 1950, "urban" comprised all territory, persons, and housing units in incorporated places of 2,500 or more persons, and in areas (usually minor civil divisions) classified as urban under special rules relating to population size and density. The definition of urban that restricted itself to incorporated places having 2,500 or more persons excluded many large, densely settled areas merely because they were not incorporated. Prior to the 1950 census, the Census Bureau attempted to avoid some of the more obvious omissions by classifying selected areas as "urban under special rules." Even with these rules, however, many large, closely built-up areas were excluded from the urban category. To improve its measure of urban territory, population, and housing units, the Census Bureau adopted the concept of the urbanized area and delineated boundaries for 191 In 1932, when the Court received its first five apportionment cases, it was able to dismiss the cases through a variety of means and never had to touch the question of equitable distributions of citizens between State districts.8 Nevertheless, in Wood v. Broom, four members9 of the majority added a concurring opinion: We “are of the opinion that the decree should be reversed and the bill dismissed for want of equity, without passing upon the question” of section 3 of the 1911 Reapportionment Act, as the Court ultimately did in its majority opinion. This “cryptic ‘want of equity’ phrase,” Dixon observes, “suggests a policy of judicial self-limitation analogous to the doctrine of ‘political question,’ and probably indistinguishable in this context. It suggests that the Court normally would not exercise jurisdiction in this kind of case, despite noncompliance with either statutory or constitutional standards.”10 A policy of judicial restraint also assumes jurisdiction. In 1946, when the next apportionment case, Colegrove v. Green, came before the Court from Illinois, the disparity between the largest urban district and the smallest rural district was 914,053 to 112,116, and the state had not reapportioned since 1901.11 The petitioners presented a significant amount of evidence that this was by no means a one state problem either. A disparity clearly existed, and that disparity was widespread, but the Court, in being forced to directly answer the question directly for the first time, was divided on how to proceed. unincorporated places (now, census designated places) for the 1950 census. Urban was defined as territory, persons, and housing units in urbanized areas and, outside urbanized areas, in all places, incorporated or unincorporated, that had 2,500 or more persons. https://www.census.gov/population/censusdata/urdef.txt March 1, 2017 8 The five cases were answered with two decisions: Smiley v. Holm, 285 U.S. 355 (1932); Wood v. Broom, 287 U.S. 1 (1932). 9 Brandeis, Stone, Roberts, Cardozo 10 Dixon, 109. Emphasis in original. 11 Colegrove v. Green, 328 U.S. 549 (1946). 192 Ultimately, in a 4-3 decision, the Court chose to dismiss the suit, but the reasoning of the decision was split 3-1-3. The plurality opinion, written by Justice Frankfurter, begins by agreeing with the concurring opinion from Wood, that the case should be “dismissed for want of equity.” Then, in an effort to fully justify the decision to dismiss the case, Frankfurter argues that the Court has no jurisdiction over the question because the Constitution gives Congress a plenary power over the composition of its members.12 Historical practice shows, Frankfurter says, that reapportionment is an “embroilment” of “party conflict and party interests.”13 “To sustain this action,” which is to say, to force a reapportionment by judicial order, “would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.”14 Frankfurter’s reasoning is thus all over the place, vacillating between appeals to judicial restraint, a lack of jurisdiction, and seemingly back again. Yet, even if his reasoning is not concise, his desire to keep the judiciary out of the reapportionment process is explicit: “It is hostile to a democratic system to involve the judiciary in the politics of the people. 12 Colegrove v. Green, at 554: “The petitioners urge with great zeal that the conditions of which they complain are grave evils and offend public morality. The Constitution of the United States gives ample power to provide against these evils. But due regard for the Constitution as a viable system precludes judicial correction. Authority for dealing with such problems resides elsewhere. Article I, section 4 of the Constitution provides that ‘The Times, Places and Manner of holding Elections for…Representative, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, ...’ The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate.” 13 Colegrove v. Green, at 554. 14 Colegrove v. Green, at 556. 193 And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.”15 The concurring opinion, written by Justice Rutledge, concurred in the result of the case, but only concurred with the reasoning that dismissal on the “want of equity” grounds was correct. In Rutledge’s reasoning, the Court had jurisdiction, but had a right – and a duty – to not exercise that jurisdiction because “the cure sought may be worse than the disease.” Rutledge seems to have seen the consequences of actually exercising the jurisdiction: There is not, and could not be except abstractly, a right of absolute equality in voting. At best there could be only a rough approximation. And there is obviously considerable latitude for the bodies vested with those powers to exercise their judgment concerning how best to attain this, in full consistency with the Constitution.16 But he was the only one to see the difficulty. In light of the dissent, written by Justice Black, which argued that the Court had both jurisdiction and an obligation to provide an equitable remedy, the ultimate ruling of the Court was 4-3 for dismissal of the case, 7-0 in affirming that a question of equity was before the Court, and 4-3 in favor of the Court having jurisdiction over the question. Even then, the denial of jurisdiction seemed to be more of a defensive mechanism to protect the Court from the complications the majority foresaw in judicial action on the question. Still, at 4-3 in recognizing jurisdiction over the question, the Court seemed willing to take up the question again in the future, and Black’s dissent laid out a number of ideas which would become the roadmap going forward. 15 16 Colegrove v. Green, at 554-5. Colegrove v. Green, at 566. 194 Black’s proposal for an equitable remedy was to invalidate the current apportionment and allow (not mandate, which is an important distinction) at-large elections similar to the outcome of State reapportionment cases that were answered by the decision in Smiley v. Holm. Since 1842, Congress has required the apportionment of representatives according to districts. This change, from the great variety of methods used by the various States to a uniform national policy of district apportionment, the great legist Kent explained, was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.17 Though this at-large election would open up the State’s national representation to the danger of being dominated by one majority within the State, as the plurality opinion argues, Black feels this would only be a short-term situation which would serve to spur the political powers to fulfill their legal reapportionment responsibilities. His reasoning, however, was not focused on such limited ends. Black begins with the right to vote, and from that right derives the right to have that vote counted, and then the right to have that vote counted equally, and more specifically that each voter’s vote should be “effectively equal.” This becomes Black’s “Constitutional policy of equal representation.” From this policy it follows that “[a]ll groups, classes, and individuals shall to the extent that it is practically feasible be given equal representation in the House of Representatives.”18 Because the disparate apportionment deprives citizens of an “effective vote,” it 17 18 Kent, Commentaries, as quoted in Colegrove v. Green, at 553. Colegrove v. Green, at 570-2. 195 is, for Black, clearly a case where the Court can and should exercise its equity power. “[S]tate legislatures must make real efforts to bring about approximately equal representation of citizens in Congress,” and where it fails to make those real efforts, “it is the Court's duty to invalidate the state law.”19 Black’s “Constitutional policy of equal representation,” drawn from the Constitutional provision of apportionment by population and the statutory provision of dividing apportioned seats by population within the States, relies not only on the reasoning of representation as a reduction of the population in the assertion that equal population equals “effectively equal representation,” but it also assumes that effective representation is getting what you want – a reduction not only of population but of interests, that are then represented proportionally in the House of Representatives, just as they are in a Westminster-style parliamentary system of Britain and former Crown countries like Canada and Australia. Black’s reasoning pointed to a remedy that would require a fundamental change in the representative principle of the country, and his reasoning provided no practical boundaries to where the theoretical revolution of absolute mathematical equality would end. Colegrove v. Green is famous for the political question doctrine and Frankfurter’s eminently quotable line that the Court should not enter the political thicket, however, the case and all its reasoning, and the apportionment jurisprudence which has followed in its path, is really about the scope of the Court’s equity power. Justice Black’s “Constitutional policy of equal representation” is not in the Constitution, nor is it derived from Madison’s theory of representation, or another prominent theory of representation present at the Convention since the Convention explicitly rejected the idea of representing parties and interests rather than 19 Colegrove v. Green, at 572. 196 individuals. But in the face of growing inequality between urban and rural interests, Black’s expansive appeals to justice and equality, and the Court’s recognition of jurisdiction over the increasing disparities (in its reasoning, but not its decision), pointed only to the inevitable outcome of the Court entering the thicket once the disparities became so significant that they could no longer be seen as anything but awash in inequity. That case arrived in 1962 with Baker v. Carr, and with it, the first of several waves of a reapportionment revolution.20 Dixon observes, “[w]hen extraordinary problems call forth extraordinary remedies, results may outrun logic.”21 We could not ask for a more appropriate epigraph to the reapportionment revolution that followed, and continues today. The cases which had reached the Court, both from state and federal courts, before Bake v. Carr had been concerned with congressional districts for the federal government. At question in Baker v. Carr was the State legislature of Tennessee. Tennessee, like the rest of the nation, had undergone significant changes and the number of eligible voters grew from 487,380 in 1901 to 2,092,891 in 1961.22 Representatives were apportioned according to counties, and some counties were given as many as eight representatives while other counties were combined under one representative. Notwithstanding the substantial demographic changes that took place along with the population growth, the apportionment of representatives had been largely unchanged since 1901. This apportionment scheme had the effect of allowing thirty seven percent of the population to elect approximately sixty one percent of the State Senate. This is a gross disparity by the standards of popular rule, but what about the disparity makes it justiciable? Does it violate the guarantee of a 20 Baker v. Carr, 369 U.S. 186 (1962) Dixon, 119. 22 Baker v. Carr, at 192. 21 197 republican form of government given to all the States in Article IV of the Constitution? Does it violate the Due Process or Equal Protection clauses of the Fourteenth Amendment? And if so, what law is not being equally applied? This distinction between federal and State legislatures necessitated new answers to new questions, but just as Justice Black was unable to limit the logic of his opinion to his remedy alone in Colegrove, so too the Court, in turning to equity as its rational standard, was unable to limit its bounds. Justice Brennan delivered the opinion of the Court and dedicated significant portions of his reasoning to the political question doctrine, ultimately reasoning that the case would not be justiciable if it were brought under the Guaranty clause, but is justiciable under the Equal Protection clause of the Fourteenth Amendment. Having determined that the case was justiciable under the Equal Protection clause, Brennan saw no need to examine the appropriate remedy: “Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.”23 The connection between logic and results was given a hard pass. Justice Clark’s concurring opinion situated him as the lone justice willing to settle the question on its merits and argued that not only was the case justiciable, but “the Tennessee apportionment statute offends the Equal Protection clause.”24 In passing judgment, Clark felt it appropriate to broadly outline a remedy and offered a rational basis test that would have left room for State autonomy in the imitation of the Federal model of one house apportioned according to population and the other apportioned to pre-existing political or geographical 23 24 Baker v. Carr, at 198. Baker v. Carr, at 158. 198 subdivisions. This test of rationality would pit “an identifiable and intelligent principle…consistently applied,” as Dixon explains, against the “crazy quilt without rational basis” which Clark saw as a gross violation of equity in Tennessee.25 In addition to providing the outline of a remedy, this reasoning would also connect the claim to the Due Process clause of the Fourteenth Amendment and provide a second layer to a charge of unconstitutionality while also providing a more limiting principle for future remedies. Under a Due Process claim, the Court would only have to ask if an identifiable and intelligent principle were being consistently applied, and if not, then provide a remedy within the framework of that State’s constitution, without running into the vagaries of the bounds of equity power in political questions. Justice Frankfurter’s dissent picked up on the consequence of Clark’s shift in reasoning from Equal Protection to Due Process. More than adding a second layer of unconstitutionality to the claim, the shift revealed that Baker v. Carr “is, in effect, a Guarantee Clause claim masquerading under a different label.”26 It is a question about the balance of power within a regime, and Frankfurter argues that the balancing of this political process is precisely what the Court has eschewed involvement in through its application of the political question doctrine. Framing the question as an equity claim does not change the nature of the power struggle: At first blush, this charge of discrimination based on legislative underrepresentation is given the appearance of a more private, less impersonal claim, than the assertion that the frame of government is askew. Appellants appear as representatives of a class that is prejudiced as a class, in contradistinction to the polity in its entirety. However, the discrimination relied on is the deprivation of what appellants conceive to be their proportionate share of political influence. This, of course, is the practical effect of any allocation of power within the institutions of government. Hardly any distribution of political authority that 25 26 Dixon, 132. Emphasis in original; Baker v. Carr, at 254. Baker v. Carr, at 297. 199 could be assailed as rendering government nonrepublican would fail similarly to operate to the prejudice of some groups, and to the advantage of others, within the body politic. It would be ingenuous not to see, or consciously blind to deny, that the real battle over the initiative and referendum, or over a delegation of power to local rather than state-wide authority, is the battle between forces whose influence is disparate among the various organs of government to whom power may be given. No shift of power but works a corresponding shift in political influence among the groups composing a society. What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of ‘debasement’ or ‘dilution’ is circular talk. One cannot speak of ‘debasement’ or ‘dilution’ of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation— ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union.27 The consequences of the Court’s reasoning, Frankfurter explains, would be the judicial imposition of one basis of representation over another, not a maintenance of equity that may be found in the present basis of representation. In the context of the Federal legislature, there was the question of an equity claim because the Constitution mandated apportionment by population for the House, and the legislature had enacted a statute to further apportion those seats distributed amongst the States by district. No such claim, historical or legal, existed in the context of the State legislatures. Madison’s theory of representation and republican government may call for majority rule, but the Constitution did not mandate that State Governments be 27 Baker v. Carr, at 298-300. 200 popular. The Constitution guarantees republican government to the States, but this has long been held to be a congressional power exercised when new representatives are allowed to take their seats in each respective chamber.28 The States were left free to determine their own representative forms and, consequently, there was a great deal of variety prior to the ratification of the Fourteenth and Fifteenth Amendments,. Frankfurter’s study of apportionment practices throughout the history of the American republic demonstrates a tremendous degree of variation in representative methods that “show more than individual variations from a generally accepted standard of electoral equality. The [data] show that there is not—as there has never been—a standard by which the place of equality as a factor in apportionment can be measured.29 The resolution of the apportionment question, which, by its character, is a subject of extraordinary complexity, involving—even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised—considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others,30 is not, Frankfurter argues, a question which the judicial skill set is designed to handle. How, upon entering the political thicket, will the Court know how to balance all these inherently political powers and interests? What judicially cognizable standards of action exist that can guide 28 See William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca: Cornell University Press, 1972). 29 Baker v. Carr, at 322-3. 30 Baker v. Carr, at 323. 201 the Court once it enters the political thicket, and what bounds exist to the Court’s reasoning once it begins to order remedies? Frankfurter does not know, and argues that neither does the Court. The rapidity of the reapportionment revolution’s first wave, as well as the subsequent waves which would follow, bear out Frankfurter’s reasoning. The Court’s desire to remedy, and in particular its desire to remedy under the Equal Protection and not the Due Process clause, far out-paced its ability to produce a theoretically concise and actionable remedy. After the Court announced that it not only had jurisdiction, but that both Federal and State legislative apportionments were justiciable under the Equal Protection clause, the flood gates opened and the first wave of apportionment jurisprudence swept the nation. In Gray v. Sanders (1963), the Court invalidated Georgia’s “county-unit” system which weighted votes for statewide office by counties, in a manner not dissimilar to the Electoral College in practice.31 The immediate impact of the case was limited, since Georgia was the only state using such a system, but the reasoning, as we have already seen from precedent, was more expansive than the ruling. Writing for the Court, Justice Douglas explicated a new principle of representational equality which would guide the Court in their future decisions: “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”32 Justice Douglas does not hide that this is a new understanding of representation, one which has evolved out of the amendments of the Constitution and not the theory of the Constitution or its institutions. After quoting Hamilton’s explanation of the virtues of the Electoral College in preventing an unqualified man from becoming president, Douglas dismisses 31 32 Gray v. Sanders, 372 U.S. 368 (1963). Gray v. Sanders, at 381. 202 that entire mode of representational thinking as antiquated: “Passage of the Fifteenth, Seventeenth, and Nineteenth Amendments shows that this conception of political equality belongs to a bygone day, and should not be considered in determining what the Equal Protection clause of the Fourteenth Amendment requires in statewide elections.”33 “One person, one vote” is thus a new representative principle, a mathematical instantiation of the principle of majority rule. In Wesberry v. Sanders (1964), again from Georgia, the Court took up the apportionment of Federal legislative districts.34 Justice Black, speaking for the Court, argued that “[t]he right to vote is too important in our free society to be stripped of judicial protection” by interpreting Article I of the Constitution to give Congress and State legislatures sole authority over the legitimacy of intrastate apportionments. We hold that, construed in its historical context, the command of Art. I, s 2, that Representatives be chosen “by the People of the several States” means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another’s…To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected ‘by the People,’ a principle tenaciously fought for and established at the Constitutional Convention. The history of the Constitution, particularly that part of it relating to the adoption of Art. I, s 2, reveals that those who framed the Constitution meant that, no matter what the mechanics of an election, whether statewide or by districts, it was population which was to be the basis of the House of Representatives.35 To come to this conclusion, Black had to read the history of the Constitutional Convention for all it is worth, and then quite a bit more. The debates from which Black draws his history, and his belief in Madison’s support – “James Madison agreed, saying ‘If the power is not immediately 33 Gray v. Sanders, at 377. Wesberry v. Sanders, 376 U.S. 1 (1964). 35 Wesberry v. Sanders, at 7-9. 34 203 derived from the people, in proportion to their numbers, we may make a paper confederacy, but that will be all.’” – were focused exclusively on the apportionment of representatives between the several States and not on the intrastate apportionment of representatives. Madison absolutely wanted a popular apportionment of both chambers, and in the face of political realities was willing to accept an apportionment of Senators based on State equality, but he never argued for making the State apportionment standards match the Federal government’s. The Constitution specifically left the standards of voter eligibility to the State, and it was assumed that the variation of practices in the States would allow the best practices to be identified and imitated throughout the nation. During Madison’s lifetime, there was never a uniform rule for the selection of representatives from each State and a variety of district models, and even at-large elections remained a normal feature of Congressional elections around the nation until 1842.36 Madison’s arguments for a popular derivation of the House were focused on the apportionment of seats between the States, not within them. More problematic still, however, was the Court’s manipulation of the historical record to support its central assumption that the right to representation is the same as the right to vote. The “one person, one vote” maxim asserted by the Court assumes first, that the majority must rule, and second that equal voting is synonymous with effective representation. Madison would agree with the first assumption, but the limitation of representation to the act of voting is an assumption which, in the words of Alfred Kelly, “Madison would have undoubtedly greeted with 36 For a history of apportionment in the early republic, see Joel Francis Paschal, “The House of Representatives: ‘Grand Depository of the Democratic Principle’?”, Law and Contemporary Problems, Vol. 17, No. 2, Legislative Reapportionment (Spring, 1952), 276-89. 204 equal parts of astonishment and laughter.”37 With this historical account and theoretical reasoning, the Court was indicating to lower courts that it would treat representation cases as franchise cases, and in franchise jurisprudence, the voter has an absolute right to equality. Again, the reasoning of the Court went far beyond the needs of the immediate remedy it needed to justify. Justice Harlan focused on this precise point in his dissent: Although the Court finds necessity for its artificial construction of Article I in the undoubted importance of the right to vote, that right is not involved in this case. All of the appellants do vote. The Court's talk about “debasement” and “dilution” of the vote is a model of circular reasoning, in which the premises of the argument feed on the conclusion. Moreover, by focusing exclusively on numbers in disregard of the area and shape of a congressional district as well as party affiliations within the district, the Court deals in abstractions which will be recognized even by the politically unsophisticated to have little relevance to the realities of political life.38 Justice Harlan’s understanding of representation, drawing on the geography, demographics, and political affiliations of a district leaves room for the Madisonian processes of political representation to take place. Instead, the Court’s equation of voting with representation, and the subsequent methodology of applying an absolute right of equality as the proper standard for remedying an identified inequality, meant that the Court could only define “effective representation” as a reduction of the citizenry, “as nearly as is practicable,” to mathematical equality. Having established the reasoning that mathematical equality is democratic representation, and further supported by its own inertia, the implementation of this 37 Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 Supreme Court Review (Chicago: University of Chicago Press, 1965) 135-6. 38 Wesberry v. Sanders, at 25. 205 mathematical equality was only an inevitable matter of when the paperwork would be completed. This was accomplished with six judgments handed down in quick succession in 1964, led by Reynolds v. Sims.39 Reynolds v. Sims was a challenge to the apportionment of the Alabama State Legislature which had not reapportioned since 1901. In the new metrics the Court developed and used to quantify inequality between districts, Alabama had population variance ratios (ratio of population in biggest and smallest district within the State, thus identifying the extreme bounds of malapportionment, but not the average inequity between districts) of 16:1 in the house and 41:1 in the senate and electoral percentages (the smallest percentage of the population needed to elect a majority of the members of one chamber) of 25.7 percent in the house and 25.1 in the Senate. The extent of the disparity can only be properly conveyed with superlatives, and the Court ordered reapportionment of both chambers in accordance with the “one person, one vote” standard. WMCA v. Lomenzo was a challenge to the New York State Legislature.40 With population variance ratios of 12.7:1 and 2.6:1, and electoral percentages of 37.5 and 38.1 percent for both the assembly and senate respectively. These variations were nowhere near as egregious as Alabama’s, and New York had a history of following the apportionment methodology, meant to draw representatives according to both population and political subdivisions, laid out in its 1894 constitution.41 Nevertheless, the Court held that, [h]owever complicated or sophisticated an apportionment scheme might be, it cannot, consistent with the Equal Protection Clause, result in a significant undervaluation of the weight of the votes of certain of a State's citizens merely 39 Reynolds v. Sims, 377 U.S. 533 (1964). WMCA v. Lomenzo, 377 U.S. 633 (1964). 41 The population variance and electoral percentage numbers cited here are what the Court foresaw as the effect of leaving the current apportionment model under the data of the then recently released 1960 census data. 40 206 because of where they happen to reside. New York's constitutional formulas relating to legislative apportionment demonstrably include a built-in bias against voters living in the State's more populous counties.42 The Court was quickly narrowing its focus to absolute mathematical equality in its pursuit of what it was now starting to call equitable, in addition to effective, representation. Maryland Committee for Fair Representation v. Tawes was a challenge to the Maryland State Senate – not the legislature as a whole.43 The Maryland constitution locked the apportionment of both chambers of the legislature, so the malapportionment was phenomenal: the population variance ratios were 12:1 and 32:1 and the electoral percentages were 24.7 and 14.1 percent for the house and senate respectively. The ability of 14.1 percent of the population to elect a majority of the State senators was a direct result of Maryland’s imitation of the Federal system in apportioning their senate by geographical boundaries alone. Fourteen states joined Maryland with amici briefs, arguing first that the Republican Guarantee clause allows States to choose their own forms of government, and second, that an essential aspect of republican government is the protection of minority rights, which a geographical apportionment helps secure. However, the malapportionment in both chambers of the Maryland legislature benefitted the same people and effectively closed the doors on reformation by means of the political process, which, in turn, prevented the states from making sincere arguments on the deliberative nature of representation in opposition to the Court’s understanding of representation as a reductive mathematical model of majoritarian rule. The Court’s decision thus ignored any deliberative 42 43 WMCA v. Lomenzo, at 653-4. Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964). 207 conception of representation, and expanded its verdict to invalidate both chambers of the Maryland legislature: It is simply impossible to decide upon the validity of the apportionment of one house of a bicameral legislature in the abstract, without also evaluating the actual scheme of representation employed with respect to the other house. Rather, the proper, and indeed indispensable, subject for judicial focus in a legislative apportionment controversy is the overall representation accorded to the State's voters, in both houses of a bicameral state legislature.44 The judicial focus on “overall representation” is an expansive idea. On the one hand, it could open the door to a significant agreement with Madison that both chambers of the legislature should be apportioned according to population and account for the communicative and deliberative ends of representation in Madison’s theory. On the other, it could ignore Madison’s theory altogether and understand “overall” to be synonymous with a greater degree of mathematical precision in the pursuit of population equality. Though this door was open briefly in the Court’s reasoning, the Court’s emphasis on the indispensable benefit of representation being provided to the voters, and not the people in the larger, common good sense of the word in which Madison evokes it, demonstrates that the Court had an almost singular focus on the idea of representation as a reduction of the will of the majority into an actionable force. The Court was explicit – only population equality matters in representation: For the reasons stated in Reynolds, appellees’ reliance on the so-called federal analogy as a sustaining principle for the Maryland apportionment scheme, despite significant deviations from population-based representation in both houses of the General Assembly, is clearly misplaced. And considerations of history and tradition, relied upon by appellees, do not, and could not, provide a sufficient justification for the substantial deviations from population-based representation in both houses of the Maryland Legislature.45 44 45 Maryland Committee for Fair Representation v. Tawes, at 673. Emphasis added. Maryland Committee for Fair Representation v. Tawes, at 675. 208 The question now was only a matter of attaching a mathematical figure to the Court’s understanding of “substantial.” Davis v. Mann, which involved a challenge to the apportionment of the Virginia State Legislature, offers further insight into the Court’s understanding of substantial population equality.46 Unlike the other Southern States, Virginia had a respectable history of reapportionment with each census and the population variance ratios were 4.36:1 and 2.65:1, and electoral percentages were 40.5 percent and 41.1 percent for the house and senate respectively. The Court was unimpressed, finding that neither chamber was “apportioned sufficiently on a population basis to be constitutionally sustainable,” which effectively meant that every seat in every legislature in the nation would need to be reapportioned.47 Roman v. Sincock, which involved a challenge to the Delaware State Legislature, was, in light of the other five cases, a rather straightforward decision.48 The significance of the malapportionment of the legislature, with population variation ratios of 35:1 and 15:1, and electoral percentages of 18.5 percent and 22 percent in the house and senate respectively, allowed the Court to attach firmer language to its Equal Protection reasoning against both appeals to the federal model and variations in historical practice, but it did not establish any new precedents. However, those hoping that the lack of novelty in this decision marked the bounds of the reapportionment revolution were shortly disabused of the idea that the Court had found a bounding principle to its new representational jurisprudence. 46 Davis v. Mann, 377 U.S. 678 (1964). Davis v. Mann, at 690. 48 Roman v. Sinock, 377 U.S. 695 (1964) 47 209 Lucas v. Colorado General Assembly, which involved a challenge to the Colorado State Legislature, presented a unique challenge to the Court’s “one person, one vote” maxim.49 The central presumption under “one person, one vote” is that every vote must be of equal weight. The Court’s unwillingness to fully implement a system of perfectly equally weighted votes over the tradition, and more importantly the law at both State and Federal levels, of district level representative selection was the primary reason why it struggled with defining “sufficiently equal districts” instead of mandating statewide electoral mechanisms. Following the 1960 census, Colorado chose to submit two competing reapportionment plans directly to the voters; in a theoretically perfect execution of “one person, one vote,” the voters would decide if they should apportion both chambers by population (the Equal Representation Plan), or if they should apportion the senate by both population and a “variety of geographical, historical, topographic and economic considerations” (the Federal Plan).50 The Federal Plan won by a two to one margin, and the Equal Representation Plan lost by the same margin, though more interestingly, there were more votes cast against the Equal Representation Plan than for the Federal Plan, and the Equal Representation Plan lost in every single county, including the urban center of Denver.51 Under the plan which voters adopted, the population variance ratio would be 1.7:1 and 3.6:1 and the electoral percentages would be 45.1 and 33.2 percent for the house and senate respectively. In order to overturn the disparity in the senate ratio, as well as the federal idea of representation as anything other than population-based, the Court treated the referendum process as a voting rights violation and not the legitimate outcome of equally weighted votes. 49 Lucas v. Colorado General Assembly, 377 U.S. 713 (1964). Lucas v. Colorado General Assembly, at 738. 51 See Dixon, 235-7. 50 210 While a court sitting as a court of equity might be justified in temporarily refraining from the issuance of injunctive relief in an apportionment case in order to allow for resort to an available political remedy, such as initiative and referendum, individual constitutional rights cannot be deprived, or denied judicial effectuation, because of the existence of a nonjudicial remedy through which relief against the alleged malapportionment, which the individual voters seek, might be achieved. An individual's constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State's electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause. Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a court of equity to refuse to act.52 The verdict, both legally and philosophically was clear – population equality was the only legitimate basis for representation, and the only legitimate remedy, both judicial and nonjudicial, is the levelling of population between districts. The right to representation is a “constitutionally protected right to cast an equally weighted vote,” and nothing, not even popular sovereignty, can abridge that right. The underlying theme throughout all these cases, the theoretical thread that draws them together, is the conception of representation as a concentration of power. The right to vote, and to have your vote counted, is, as Justice Harlan’s frequent dissents repeated at every turn, more than simply counting votes if you insist that they must also be weighted equally – there is an inherent expectation that the individual’s desired outcome is directly correlated to his/her act of voting. By conceptualizing representation as a right to vote, and the right to vote as the right to direct the power of government toward issues and interests of your choosing – to get what you want in simple, colloquial terms – the Court not only opened its doors as a court of equity in apportionment cases, but also as a power broker for those who could not get what they wanted 52 Lucas v. Colorado General Assembly, at 736. Emphasis added. 211 by other means. “As one might expect,” Dixon observes in a discussion on the ideological aspect of the reapportionment revolution, The plaintiffs in reapportionment cases tend to be Democrats in areas of Republican legislative dominance, Republicans in areas of Democratic legislative dominance, and urban-suburban-oriented in virtually all areas. Plaintiffs have sought representation in the legislature more nearly in proportion to their statewide strength than that afforded by existing apportionment and districting systems. They have sought to achieve this goal almost exclusively through equalization of population of legislative districts – a device which often, but not always, produces the desired results.53 Power is of an encroaching nature, and in the Court it found a new field in which it could probe for weaknesses and press for advantage. The language of the Court, in its search for significant majority control and sufficient equality in the weighting of votes, along with its identification of effective representation as the act of voting, creates the image of a people taking direct action in their government, with all the idealism of the democracies of ancient Greece, but much larger. However, that same language, while highly optimistic and fueled by the righteousness of equity, is, to be charitable, theoretically imprecise. The Court’s own metrics – population variance ratios and electoral percentages – which were central to its capacity to visualize representative equality and efficacy, errantly equate “population” with “the people.” The Court, in its own estimation, was bringing democracy back to the people by ensuring that their Constitutional right to have their vote counted equally was efficacious. But what it said in effect was that representation is a transference of power, a distillation of will from one majority to its representative: a population is 53 Dixon, 5. 212 effectively represented if its votes are equally weighted and the majority of voters gets what it wants. But reducing the population to an empowered interest is precisely the opposite end of Madison’s theory of representation which he and the other delegates established in the Constitution. “The great desideratum in Government,” Madison explained before the Convention in “Vices,” “is such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions, to control one part of the Society from invading the rights of another, and at the same time sufficiently controlled itself, from setting up an interest adverse to that of the whole Society.54 The “whole Society,” the “people,” is a much more expansive concept than the data point of population; it evokes the concept of the common good and the long-term, aggregate interests of the whole instead of the immediate will of the majority. There is no doubt that Madison would have found the malapportionments of the 1960s deeply disquieting, but the Court’s ultimate focus on equity over due process in the early efforts to address the obvious inequities contributed to fundamental theoretical errors. The Court’s understanding of representation assumes that the equal weighting of a vote makes it good, and that in the instances where the equal weighting of a vote does not lead to a desirable outcome, the Court will be there to remedy the inequity, as it did in Lucas. The Court’s first attempt at a jurisprudence of representation modifies sovereignty, in such a way that it empowers interests and factions and forecloses the channels of the communicative process between interests which Madison sees as essential to a just and free society, by making representation about power and effective control and not reason. 54 Madsion, Writings, 79. 213 The Court’s first strand of jurisprudence continued to rule over representational politics for sixteen years, reapportioning every legislative seat in the nation, save the United States Senate, and began reaching down to locally elected offices and boards as well. But the Court’s focus on substantive majority control, coupled with the equity standard of mathematical equality, did not address the difficulty of protecting minority rights in a majoritarian conception of representative government. In “Vices” Madison posed the following hypothetical, which turned out to be the precise facts of the case which would break the Court’s first strand of representational jurisprudence: “Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it.” The Court’s representational reasoning provided no such guard. City of Mobile, Alabama v. Bolden, (1980) involved a challenge to the at-large election of each of the city’s three city commissioner seats.55 “The complaint alleged that the practice of electing the City Commissioners at large unfairly diluted the voting strength of Negroes in violation of § 2 of the Voting Rights Act of 1965, of the Fourteenth Amendment, and of the Fifteenth Amendment.”56 The two central premises of the Court’s understanding of representation – that first, votes must be mathematically equal and second, that effective representation is the majority getting what it wants – had been coming into conflict in other cases before the Court, but now, through the formulation of the arguments by the black voters who felt their votes were being diluted, the conflict inherent in the reasoning of the Court was 55 56 City of Mobile, Alabama v. Bolden, 446 U.S. 55 (1980) City of Mobile, Alabama v. Bolden, at 58. 214 laid bare and the Court would have to choose between mathematical equality or its own understanding of effective representation. Again, because the Court had conflated voting rights and civil rights precedents in its representational reasoning, there were a number of precedents which the Court had to work through: The claim that at-large electoral schemes unconstitutionally deny to some persons the equal protection of the laws has been advanced in numerous cases before this Court. That contention has been raised most often with regard to multimember constituencies within a state legislative apportionment system. The constitutional objection to multimember districts is not and cannot be that, as such, they depart from apportionment on a population basis in violation of Reynolds v. Sims, and its progeny. Rather the focus in such cases has been on the lack of representation multimember districts afford various elements of the voting population in a system of representative legislative democracy. “Criticism [of multimember districts] is rooted in their winner-take-all aspects, their tendency to submerge minorities . . ., a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests.” Whitcomb v. Chavis. Despite repeated constitutional attacks upon multimember legislative districts, the Court has consistently held that they are not unconstitutional.57 In order to depart from its reasoning on mathematical equality, the Court would have to see evidence of invidious discrimination, which, up to this point, was a standard that had only been met in one case.58 Because the facts of the case “make clear that Negroes register and vote in Mobile ‘without hindrance,’ and that there are no official obstacles in the way of Negroes who wish to become candidates for election to the Commission,” there is no Constitutional violation of their rights in their historical inability to elect a candidate of their own racial background.59 57 City of Mobile, Alabama v. Bolden, at 65-6. Emphasis added. White v. Register, 412 U.S. 755 (1973) 59 City of Mobile, Alabama v. Bolden, at 73. 58 215 The Court’s clean delineation of the two competing premises of its representational thought was necessitated in large part by Justice Thurgood Marshall’s aggressive, theoretical dissent. The legal point Marshall seeks to make is that a disparate impact, and not invidious intent, should be the standard by which the Court determines if it should rule the electoral mechanism unconstitutional. But from the outset, Marshall’s reasoning is much broader, and he lays down an historical account of expansive voting rights: The American ideal of political equality, conceived in the earliest days of our colonial existence and fostered by the egalitarian language of the Declaration of Independence, could not forever tolerate the limitation of the right to vote to white propertied males. Our Constitution has been amended six times in the movement toward a democracy for more than the few, and this Court has interpreted the Fourteenth Amendment to provide that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”60 Marshall proceeds to string together a number of the Court’s voting rights and representational cases to show that, in the reasoning of precedent, a vote dilution claim is evident not only when there is a population disparity, but also when “a discrete political minority whose voting strength is diminished by a districting scheme proves that historical and social factors render it largely incapable of effectively utilizing alternative avenues of influencing public policy.”61 This leads Marshall to identify a more comprehensive right than voting or representation alone, a “fundamental right to equal electoral participation” that includes the power of electing representatives of one’s own choosing.62 60 City of Mobile, Alabama v. Bolden, 100 S. Ct 1490, at 1519-20. City of Mobile, Alabama v. Bolden, at 1523, fn7. 62 City of Mobile, Alabama v. Bolden, at 1525. 61 216 The Court’s plurality decision mischaracterizes Marshall’s expansive reasoning as “a federal constitutional right [for every ‘political group’] to elect candidates in proportion to its numbers.”63 The Court is correct that such a conception of representation – the proportional representation of groups, parties, and interests – is not one drawn from the American experience or Constitutional law. It is a model drawn from England and the parliaments of continental Europe; American representation is derived explicitly from the individual and his/her natural rights. Marshall’s reasoning, more honestly construed, is a call for any minority which is first, capable of showing itself to be a cohesive voting bloc, and second, incapable of exerting political force proportional to its voting strength – that is, electing candidates of its own choosing – under the existing electoral mechanism or apportionment, to have a right to change the offending mechanism or apportionment. Marshall’s use of “group” language, though not outside the reasoning of the precedent cited, allows his opinion to be mischaracterized. “It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects,” the plurality opinion explains, “but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation. And the Court's decisions hold squarely that they do not.”64 Ultimately, the Court’s decision was fractured, with the plurality opinion, two concurrences, and three dissents revealing a Court that was neither enthusiastic about the reasoning which controlled the decision, nor its outcome. The Court, however, never had time to 63 City of Mobile, Alabama v. Bolden, at 75. City of Mobile, Alabama v. Bolden, at 78-9. I think the biggest problem the Court had with Marshall’s opinion was his usage of the language of group rights. Had he used the language of individuals, who both have rights and are assumed to act as a group, I think he would have been able to change the outcome of the case. 64 217 sort through the implications of its decision, as Congress, during the 1982 process of reauthorizing the 1965 Voting Rights Act, altered section two in order to prohibit discriminatory effects as well as discriminatory intent, just as Justice Marshall had argued.65 66 The Court was satisfied with this statutory revision to its Constitutionally-based decision making process, though in a later case, City of Boerne v. Flores (1997), it would rebuke Congress for overstepping its bounds in providing a statutory revision to one of its decisions.67 Allowing the statutory 65 The new language for section two reads as follows: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. See 42 United States Code 1973, as amended, 96 Statute 134. See also, Senate 1992, 97th Cong. § 2 (1982). 66 The Senate legislative history also shows a distinct concern among the Senators of the Judiciary Committee about how the Court should apply this new statutory language and emphasized seven factors worthy of particular attention: history of discrimination; degree of racial polarization in elections; historical use of voting provisions that marginalize minority influence in elections, e.g., large election districts, majority vote requirements, etc.; minority exclusion from candidate slating process; degree of socio-economic discrepancies borne by the minority group; overtly racial political campaigns; and, lastly, a reiteration of the statutory language that past success or failures of minority candidates for election can be considered. United States Code Congressional and Administrative News (USCCAN) 1982, 206-7. See also Florence Adams, Latinos and Local Representation: Changing Realities, Emerging Theories (New York: Garland Publishing Inc, 2000), 10-11. 67 City of Boerne v. Flores, 521 U.S. 507 (1997). The conflict in Boerne was precipitated by Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), wherein the Court held that a prohibition against the smoking of peyote was not a violation of the First Amendment’s Free Exercise clause. Congress responded by passing the Religious Freedom Restoration Act of 1993 to prevent all government officials from substantially burdening an individual’s free exercise, unless there was a compelling government interest. In exploring the limits of Congress’s statutory authority under section five of the Fourteenth Amendment, Justice Kennedy, speaking for the Court, referred extensively to the Voting Rights Act of 1965 as an example of the proper exercise of congressional authority, but did not speak of the 1982 amendments when approving of the 1965 act. Furthermore, Justice Kennedy cited several subsequent cases approvingly in this exposition, but these cases relied on the second section of the Fifteenth Amendment for their enforcement, and all predated the 1982 amendments. Elsewhere, Justice Kennedy explicitly avoided affirming, or denying the constitutionality of the 1982 amendments. See Johnson v. De Grandy, 512 U.S. 997, 1028-29 (1994) (Justice 218 revision to stand gave the Court the opportunity to create a new line of reasoning, a second reapportionment jurisprudence, which would allow it to focus on its desired ends of effective representation free from the burden of mathematical equality. The Court quickly seized upon the new opportunity in Thornburg v. Gingles (1986).68 The case involved a challenge to one single member and six multimember districts in North Carolina. In City of Mobile v. Bolden, the Court argued against a group’s claim to a constitutional right of representation, insisting that representation was derived from the individual’s right to an undiluted vote. But, again following Justice Thurgood’s reasoning, and applying the 1982 Voting Rights Act, the Court found in Thornburg v. Gingles that if a group of individuals could be assumed to think the same and share similar interests, could be shown to live in a sufficiently compact space, and that they constitute a majority and act together politically, then the rights of those individuals could be treated as a group.69 The statutory emphasis on discriminatory effects, Kennedy concurring); Chisom v. Roemer, 501 U.S. 380, 418 (1991) (Justice Kennedy dissenting). For a time, there was some debate over whether or not the Court would overturn the 1982 Voting Rights Act when Justice Sandra Day O’Connor openly questioned the statute’s constitutionality in Bush v. Vera, 517 U.S. 952, 990 (1996) (O’Connor, J., concurring). 68 Thornburg v. Gingles, 478 US 30 (1986) 69 The Court explained their reasoning as follows: “While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice… First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. If it is not, as would be the case in a substantially integrated district, the multi-member form of the district cannot be responsible for minority voters’ inability to elect its candidates… Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests… Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it – in the absence of special circumstances, such as the minority candidate running unopposed – usually to defeat the minority's preferred candidate.” Thornburg v. Gingles, at 48-51. 219 and not just intent, gave the Court the bridge it needed to open a new front of group’s rights representation in addition to, and even in opposition to, the first line of jurisprudence based in the individual’s right to an equally weighted vote. The development of this second line of jurisprudence has not been as linear as the first line. In fact, one prominent case, Shaw v. Reno (1993), overturned a district that was made with the intent to be a majority-minority district but lacked all the geographical and political features of a normal district in order to maximize a majority of African-American voters.70 Because the conflicts in this second line of jurisprudence are more often than not questions of political power and not voting rights in a strict sense, and the majority of the cases never made it beyond the circuit courts, the jurisprudence of this second line has a distinct ad hoc nature to it. Thus, the Court’s struggle with the application of its reapportionment jurisprudence to the question of when should a minority rule, is best understood by looking at the mechanisms by which the Court does and does not choose to enforce its rulings rather than trying to conceptualize the cases as a development of a legal principle. Since the 1982 Voting Rights Act, the conflict between the two lines of jurisprudence has taken place largely along the lines of which measurement should be used to determine that one 70 Shaw v. Reno, 509 U.S. 630 (1993). Following the Shaw decision, there were a number of significant questions asked about the possible demise of this line of reapportionment reasoning. I believe these questions confused the nature of this apportionment question – when does a minority have a right to rule – with other affirmative action applications. Though there is language in the dicta of the Court’s opinions discussing proportional representation, both the Court, and Congress through the Voting Rights Act, have denied the legitimacy of a proportional model under the Constitution. In light of this consistent denial, even from Justice Thurgood Marshall, I think this case should be read less as an insight into the Court’s feelings on affirmative action and more as a consistent application of its unwillingness to embrace a proportional model at the same time it grapples with the question, when is it right for a minority to rule. See Anthony A. Peacock, ed, Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (Durham: Carolina Academic Press, 1997). 220 person is actually one vote.71 Under the first line of reasoning developed by the Court, population statistics were imprecise by modern standards and used as a statistic to show equality between the districts, but not reveal any characteristics about the people in those districts – they were numbers in the coldest sense.72 As the second line of jurisprudence came into being, the District Courts started receiving requests to distinguish between apportionments made on total population and those based on the total number of possible voters, the Voting Age Population (VAP), or the total number of potential voters, the Citizen Voting Age Population (CVAP), to determine if a district was constitutionally compliant.73 The argument for this distinction is straightforward: total population includes all constituents, thus reflecting a mathematical equality in representation, but in including children and non-citizens, it can lead to significant inequalities in the weight of actual votes cast when one district has a higher population of noncitizens than another district. This latter argument fits well with Chief Justice Warren’s conclusion in Reynolds v Sims that representative government is, in essence, self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state 71 J. Gerald Herbert, Paul M. Smith, Martina E. Vandenberg, and Michael B. DeSanctis, The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls, 2nd ed. (Chicago: American Bar Association, 2011). 72 See Dixon, esp chap. 4, for a discussion on the nature of population statistics before and at the beginning of the first apportionment cases. 73 These are the metrics which have come before the Court, but in the districting process, additional metrics come into play, namely registered voter population, and actual voter population. These numbers are particularly important as parties seek to perpetuate their own advantages and must decide what percentage of their likely voters will keep a district secure and allow them to shift other voters to other districts. Is 51% of actual voters sufficient, or do you need to go higher – 55% or 60% - to maintain electoral dominance even when some voters stay home? These are the background questions that do not appear as evidence before the Court, but certainly factor into all the redistricting decisions. 221 legislature. Modern and viable state government needs, and the Constitution demands, no less.74 When “fair and effective representation is concededly the basic aim of legislative apportionment,” and mathematical equality is the central measure of effectiveness, the distinction between, to pick round numbers, a district with a total population of 10,000 and a CVAP of 4,000, and a neighboring district with the same total population but a CVAP or 8,000, would seem to be significant – especially in light of Warren’s reasoning that “[m]ost citizens can achieve this participation only as qualified voters through the election of legislators to represent them.”75 The debate over which measure is appropriate, which ultimately determines the “winners” and “losers” of apportionment as the different population bases can dramatically affect the composition of a district, had been largely side-stepped by the district and circuit courts as a question more properly decided by the political process than judicial decision.76 The conflict between the reasoning in the two lines of jurisprudence, the first which seems to demand that the CVAP be used as the constitutional measure of vote equality, and the second, which seems to call for the total population as a measure of the minority’s strength and claim to effective control of the representative process, finally made its way to the Supreme Court in Evenwell v. Abbott, (2016).77 Though the decision was unanimous, a notable rarity for apportionment cases, 74 Reynolds v. Sims, at 565. Emphasis added. Reynolds v. Sims, at 566. Emphasis added. 76 Prior to Evenwel v Abbott (2016), the case most often referenced on this point was a Fifth Circuit decision in Chen v. City of Houston, 206 F.3d 502, 522-28 (2000). 77 Evenwel v. Abbott, 579 U.S. ___, (2016). The case involves a challenge to the apportionment of the Texas State Senate, which is within the “presumptively permissible” (according to Justice Ginsberg, giving her and the Court ample room to revise in the future) 10% degree of variation the Court allows when measure by total population and had a 40% degree of variation between the largest and smallest districts when measured by CVAP. The vast majority of the other cases I saw which engaged in this debate involved local municipalities and I believe the State-level nature of this case is what helped it arrive at the Court where the other cases all failed. 75 222 in affirming the right of States and municipalities to apportion according to total population, the Court did not make any effort to answer the question of whether CVAP could be used in place of total population if the State chose to change the basis of its apportionment. The concurring opinions all explicitly identified that particular measure as one on equal legal footing with total population, effectively sanctioning the arguments of the lower courts that the selection of a baseline measurement for apportionment is a political, and not a constitutional, question, but the effective ruling of the Court was to maintain the status quo of both legality and uncertainty. Operating under the presumption that the Court will maintain its political process doctrine in the selection of a basis for apportionment, we can now apply the Court’s reasoning in both lines of jurisprudence and determine the ideal remedy, which is to say the ideal electoral mechanism which satisfies the demands of equity. Under the Court’s first line of reasoning, which understands representation as the outcome of the individual’s right to vote, the ideal electoral mechanism is a statewide, at-large election, as this ensures a perfect, mathematical equality. However, the Court, in recognizing a significant historical tradition of the single member district model and, in part, deferring to Congress’s stated preference for single member districts, chose not to move in that direction. The Court’s reasoning in the first line of jurisprudence, as exemplified by Chief Justice Warren’s explicit connection of effective representation with the citizen’s act of voting, would seem to indicate then that the ideal electoral mechanism is a series of single member districts with the CVAP maximized for equality. Under the Court’s second line of reasoning, which understands representation as the outcome of groups of likeminded individuals’ right to vote, the ideal electoral mechanism is a series of single member electoral districts with the total population maximized for the effective participation of geographically compact minorities. One need only shift Warren’s emphasis from 223 citizens to the needs of “modern and viable” governments to justify the shift in preferred electoral mechanisms. Nevertheless, because these two lines of representational jurisprudence call for disparate remedies, they have each been invoked and deployed according to the advantage they offer to those who desire to exercise power. A uniform and standardized population metric may seem like the solution at this point, but the Court needs the two conflicting lines of jurisprudence to maintain its understanding of representation as a reduction of the population to an actionable force. Conceptualizing “representative government [as], in essence, self-government through the medium of elected representatives of the people” effectively gives constitutional status to Cam’s spokesman account of representation – you cannot speak all at once, who will speak for you? For the Court, representation is a reduction of wills down to a manageable size which gives the majority effective control over the powers of government, a transference of control which makes direct democracy possible over large populations and geographical areas. In the Court’s first line of reasoning, population is reduced to the individual’s claim to rule through the individual’s right to vote. This line of reasoning understands effective representation to be effective voting – that is, electing someone who reflects your interests and passions; and effective voting is effective majority control. Representation, in this first line, is letting the majority have what it wants and is not a mechanism that is necessary to protect minority rights. The Court was confident in the equity of majoritarian rule in Reynolds v Sims: “Our constitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures.”78 78 Reynolds v Sims, at 566. 224 The Court’s second line of reasoning is a repentance of sorts for this majoritarian hubris, as both Congress and the Court realized that representation is connected with the protection of minority rights – as Madison argues all along – but the Court’s efforts to remedy overly effective majority control doubled down on the same faulty reasoning. Since representation is the effective reduction of population, then where groups of individuals can be assumed to have the same interests and show that they are politically cohesive and yet have been unable to elect representatives of their own choosing, the equitable representation – that is an equitable reduction in the size of the population – demands that a representative be drawn from their group. The Court has consistently decried – and continues to do so – any reading of its reasoning as a right to representation proportionate to the population of the group, a disclaimer necessitated by its own connection of equitable distribution of power with a reductionist model of representation. If equity demands that a population can show it has a shared interest and has been consistently excluded from a portion of the government’s power commensurate with its numerical strength, what in the Constitution limits that claim to the population within a district of the State rather than the population statewide? Beyond a deference to Congress’s statutory preference for single member districts, and a well-established historical use of that model, the Court has no other justification for not finding that its understanding of constitutional representation to be the reduction of the majority to a size capable of effective control based in equally weighted votes does not mandate proportional representation. It is custom, and not law, that maintains our current representative mechanisms. This connection between custom and law, our mores and our legal institutions, brings us back to Madison. In the process of framing a government which was going to be derived wholly from the same people that were incapable of ruling themselves under their first attempt at 225 government, Madison offers a case study in the dramatic effects changes in our institutions, and our understanding of institutions, can have on mores and the capacity for self-government. The Constitution, and the new government it created, took effect with the same people that, though they had a desire to be free and rule themselves, were incapable of doing so, and restructured them into a stable, popular government. Contrary to the Court’s reasoning, Madison understands the population and the people to be two distinct entities. In addition to the aggregation of the population, Madison’s conception of the people also invokes the idea of a common good, a common interest which binds the people together in their short-term pursuits and long-term interests, not a simple majoritarian claim to rule. This understanding of the people as larger than the mathematical force of the population is how Madison can conceptualize the act of representation as more than a reduction of the population into a manageable size. Representation, by taking place over expanded electoral districts with a multiplicity of interests, and institutionalizing and legitimizing the right types of communication and deliberation, expands and enlarges the public views. Representation re-presents reason, but only if we understand that the people and not the population, are what is being represented. Madison’s representational scheme and constitutional institutions are not, in the words of poet James Russel Lowell, “a machine that would go of itself,” nor is it one, as Diamond argues, that was designed to run without virtue or wisdom.79 “Enlightened statesmen would not always be at the helm,” Madison tells us, but that does not mean that the institutions and processes necessary to just, popular government can be maintained without a concern for the virtue of the 79 See Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New Brunswick: Transaction Publishers, 1986) for a cultural account of constitutionalism and a look into what happens when the mores necessary to maintain popular government go untaught or are blatantly disregarded. 226 people and the maintenance of their mores.80 For the sixty years preceding the Court’s first intervention into reapportionment, there were undeniable power shifts taking place in America, largely fueled by demographic and economic shifts away from rural communities to urban and suburban ones. This shift, and the recalcitrance of those who stood to lose political power by it, no doubt worked a change in mores which contributed to a popular conception of representation as the wielding of political power. The Court’s first pronouncement of the new standard for equitable representation was even explained in the terms of laws and mores: “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”81 The Court, fresh from successes in changing the laws of racial discrimination, which undermined the mores of equality, as part of the Civil Rights Movement, saw another instance where the realities of American life were not living up to the ideals of American virtue. Madison’s persistent efforts to secure popular apportionment of both representative chambers demonstrate an agreement with the Court on the values of equal apportionment.82 However, the Court’s equation of the right to vote with the right to representation, with the substantive effect that in both lines of jurisprudence the Court must determine if there is an equitable claim to rule 80 Federalist 10, 75. Gray v. Sanders, at 381. 82 While Madison would agree with the effect of equal apportionment, he would not agree with the Court’s reasoning. The one case, however, where I am not sure which Madison side Madison would take is the Lucas decision to evaluate the apportionment passed by popular initiative. Madison would have argued, as he did at the Convention, for an equal apportionment based on population in both chambers, and I believe he would like to see the initiative invalidated as its reasoning for apportioning the Senate on a basis other than population is different from the federal rationale. However, he would not be pleased with the judicial intervention over a popularly enacted amendment. Thus I can see Madison agreeing with the case, and also rejecting it because of the method in which the effect was secured. 81 227 asserted by the petitioners, undermines the stability and veneration necessary to perpetuate the institutions and processes of American popular government. The impact of the Court’s jurisprudence on mores, again, is best seen through the lens of the encroaching nature of power. Rather than being forced through the channels of representation – the communicative channels which moderate passions and prejudice political action toward reason – the interested parties in any political clash now know that if they fail to win at the political bargaining table then they have recourse to the Courts where they only have to demonstrate their strength as a politically cohesive force. What began as an effort to protect the developing mores of political equality which the Court identified at numerous and increasingly frequent intervals through American history is now reinforcing divisive assertions of power that have turned Madison’s theory of representation upside down. Madison’s theory of representation excludes the people from the direct exercise of political power as the first step in filtering passion out of the judgments of representative government; the Court conceptualizes the citizen’s primary, and oftentimes only, participation in the representative process as a transference of the authority to act in his/her political interests. Madison understands representation as the mechanism which balances the right of the majority to rule with the rights of the minority – the communicative processes and the structured and staggered institutions of representation themselves work to serve both ends; under the Court’s understanding, two conflicting lines of jurisprudence, and methods of measuring equality, are needed to protect minorities, because representation can only maximize effective majority control. The Court, particularly in its roles as a court of equity and a leading expositor of the meaning of the laws, has contributed significantly to the erosion of the mores necessary to 228 maintain a popular government that can maintain liberty in a levelled society.83 The consequences of this breakdown in the mores necessary to a free and equal society are most evident in the escalating partisanship in Congress, but explaining all the factors which continue to feed the escalation is not so easy. Since the 1940s, the number of competitive House elections has been steadily declining.84 A common hypothesis for this decline in competitive elections, which has contributed to the juxtaposition of incumbent re-election rates within a few percentage points of 93 percent most election cycles and Congressional approval ratings below 40 percent since 2004 and regularly below 20 percent in the last decade, is that it is the result of partisan gerrymandering.85 But, while partisan gerrymandering may have some effect on individual districts, there is little evidence that there is anything more than a marginal national effect produced by partisan redistricting.86 Furthermore, neither the Senate nor the Electoral College can be gerrymandered, and there has been a noted increase in the partisan nature of both institutions.87 The Court, at the time of writing this, has yet to overturn a partisan gerrymander 83 But I do not intend in the slightest to place it all at the Court’s feet. Alan I. Abramowitz, Brad Alexander, and Matthew Gunning. "Incumbency, Redistricting, and the Decline of Competition in U.S. House Elections." The Journal of Politics 68, no. 1 (2006): 75-88. 85 Gallup, Inc. “Congress and the Public.” Gallup.com http://www.gallup.com/poll/1600/congress-public.aspx (accessed March, 15 2017). 86 See Abramowitz, et al. (2006); Seth E. Masket, Jonathan Winburn, and Gerald C. Wright. "The Gerrymanderers Are Coming! Legislative Redistricting Won't Affect Competition or Polarization Much, No Matter Who Does It." PS: Political Science and Politics 45, no. 1 (2012): 39-43; See Sean Trende’s article for a detailed treatment of the direct effects of partisan gerrymandering after the 2012 redistricting process: http://www.realclearpolitics.com/articles/2013/10/11/gerrymandering_isnt_to_blame_for_dc_impasse_120300 .html (accessed March 15, 2017). 87 Notwithstanding the increasing partisanship in the Senate, I don’t think it should be used to simply dismiss the impact of partisan gerrymandering out of hand. Trende notes that half of new Senators don’t come from the House, but that does not exempt them from the political processes of their home state – experience with the state legislature and especially the political party. My personal experience with the political process in Nevada, one of the states often used to show that the partisanship isn’t simply caused by political gerrymandering because of the juxtaposition between Harry Reid (D) and John Ensign (R) and Dean Heller (R), shows that the party controls who will receive resources to participate in the election, and encourages or discourages private party donors, in such a manner that less ideological candidates are often excluded from even entering the primary process, let alone the general election. Partisan gerrymandering is not the simple 84 229 that did not violate the “one person, one vote” rule or preclude an otherwise permissible majority-minority district, though it has a unique case before it this year (2017).88 That case, Whitford v. Gill, challenges the current district map of Wisconsin on the grounds that it violates the petitioner’s First Amendment right to the freedom of association by intentionally limiting his party’s ability to win the seat where he resides. If the Court rules that the freedom of association requires the partisan composition of each district be as equal as is practicable, the largest wholesale redistricting since the first wave of reapportionment cases will most likely result.89 But, setting aside the Court’s pending decision for a moment, is more partisan electoral competition the solution to the partisanship in Congress? Is increased partisan electoral competition an essential part of Madison’s solution to our problems of partisanship? The existing research findings which show that partisan gerrymandering contribution is marginal suggests that the answer to the former question is no. Justin Buchler, argues that increased partisan electoral competition – “bipartisan gerrymandering” – will produce a more polarized electorate than our existing electoral districts because it will engrain partisan preferences in the minds of cause of these circumstances, but I believe it contributes to the degradation of mores which would enervate such political machinations. 88 The Court also heard two other apportionment cases this term, Bethune-Hill v. Virginia State Board of Elections from Virginia, and McCrory v. Harris from North Carolina, which were traditional challenges under the second line of representational jurisprudence. Both cases have already been remanded to the lower courts for reconsideration of the methods used to determine the strength of the claims made by racial minorities. See Amy Howe’s article http://www.scotusblog.com/2016/11/argument-previews-racial-gerrymandering-returnsto-the-court/ (accessed March 15, 2017). 89 Professor Bernard Grofman believes at least 12 states will have significantly different district if the Court upholds the challenge. See “The Supreme Court will examine partisan gerrymandering in 2017. That could change the voting map.” WashingtonPost.com https://www.washingtonpost.com/news/monkeycage/wp/2017/01/31/the-supreme-court-will-examine-partisan-gerrymandering-in-2017-that-could-changethe-voting-map/?utm_term=.48b3d624b3b7 (accessed, March 15, 2017). 230 the constituents.90 Furthermore, Buchler blames Madison, in part, for the persistence of the idea that political competition is a desirable good: Political education in the U.S. indoctrinates us at a young age to believe that competition is good. In economics, market competition provides social benefits, and, by analogy, political competition must provide similar benefits. This argument is frequently made explicitly, such as by Schumpeter (1942), and it has its roots as far back as the often-assigned Federalist Papers #10 and #51.91 Sean Theriault argues that constituency factors, of which districting is only one of many, can explain roughly thirty percent of the polarization we now observe in Congress. The rest of the increase in polarization in Congress is due to changes in Congressional practices.92 Increased partisan electoral competition is therefore, in the eyes of contemporary political science, either not a good, or a good of such marginal effect that maximizing electoral districts for partisan equality will have little effect on partisanship overall.93 Theriault’s study, the most comprehensive study of the political factors which contribute to the partisan polarization, notes that there is a potential for feedback when trying to distinguish 90 Justin Buchler “Competition, Representation and Redistricting: the case against competitive congressional districts” in Journal of Theoretical Politics, Vol. 77, No.4 2005, 431-463; Justin Buchler, “The Statistical Properties of Competitive Districts: What the Central Limit Theorem Can Teach Us about Election Reform,” in PS: Political Science and Politics, Vol. 40, No. 2 (Apr., 2007), 333-337; Justin Buchler, “The Social Sub-Optimality of Competitive Elections.” in Public Choice, Vol. 133, No. 3/4 (Dec., 2007), 439-456. 91 Buchler, “The Statistical Properties of Competitive Districts,” 333. 92 Sean M. Theriault, Party Polarization in Congress (New York: Cambridge University Press, 2008). Theriault’s work offers an excellent literature review into the question of party polarization which is not necessary for my present argument, but is necessary to the actual formulation of actions meant to induce change, namely moderation. 93 “Studies have repeatedly shown that redistricting is not responsible for either the decline in the competitiveness of House elections or the increase in partisan polarization, while the electoral effects of partisan gerrymandering have been shown to be variable but relatively modest.” See Nicholas R. Seabrook, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics (Ithaca: Cornell University Press, 2017), 123. Seabrook’s work points to a number of sources which disagree with Bulcher’s thesis. I’m inclined to agree with Bulcher’s psychological argument, but overall I find Seabrook’s argument more persuasive because it approaches the right type of competition. 231 the exact effect of each variable on polarization. In short, the effect of partisan gerrymandering can never be fully separated from the effects of party influence, campaign finance, primary election mechanisms, turnout, voter information salience, etc.94 They all contribute to and reinforce one another as variables in an integrated system. Even then, Theriault focuses on the behavior of the representatives, and the party power structures within Congress in particular, as the primary cause of polarization within Congress – but this does not tell us why the people themselves are becoming more partisan. As David Wasserman shows, not only is Congress becoming more polarized, but so are the American people themselves.95 And this polarization is something distinct from mere partisan gerrymandering – Wasserman’s data, divided by county units and not district units (effectively controlling for party gerrymandering), shows that increasingly, Americans who live together think together.96 The people and their representatives are also capable of creating a feedback loop, and in looking primarily at the elections of representatives and then the actions of those representatives once in Congress, Theriault fails to place the proper emphasis on the foundation of representative government: the people. In “Vices,” Madison identified two causes for the instability of the American regime under the 94 For example, how much of party polarization can be attributed to campaign spending, and can the effect of out of district spending be separated from other factors which may cause the candidates, or the electorate, or both to become more partisan? Campaign spending, especially from interests outside the district, more than doubled from 1998 to 2012. The increased financial demands of winning one of the rare contested elections throughout the country, and the strings which come attached to the money once found, are not conducive to the selection of moderate candidates, but all these factors are intertwined and difficult to separate. See Eliza Newlin Carney, "Shrunken Field Leads to Concentrated Spending," in CQ Weekly (September 2, 2013), 142223. 95 David Wasserman, “Purple America has all but Disappeared.” FiveThirtyEight.com https://fivethirtyeight.com/features/purple-america-has-all-but-disappeared/ (accessed, March 15, 2017); see also, Bill Bishop and Robert G. Cushing. The Big Sort: why the clustering of like-minded America is tearing us apart (New York: First Mariner Books, 2009). 96 Wasserman’s data here is looking specifically at Presidential elections, but in light of the literature’s acknowledgement of the continuing decline in split ticket voting, as well as its acknowledgement of an increasingly partisan electorate, I think the conclusion is secure. 232 Articles of Confederation: “The causes lie 1. in the representative bodies 2. in the people themselves.”97 In response, he outlined and then created new institutions and processes whereby the representative bodies and people themselves would be fundamentally altered. While the literature’s focus on partisanship is largely on the representative bodies, in our present circumstances, the problem is just as Madison specified in “Vices” – with the people. More specifically, what we know and believe about representation, what we expect from representation, is wrong – what we have been taught about representation is incapable of securing liberty and maintaining equality. Our mores on representation have changed, and we must change them again. This is not a change that should be conceptualized as a temporal one, it is not a changing back to 1960 or 1789, but a changing forward toward the ideal. Times change and mores change with them, but – and this is an essential part of Madison’s understanding of human nature – representative republics can control that change in ways that had only been the province of chance before.98 The challenge is to foster and maintain the mores which will perpetuate liberty and equality. The American representative system of the mid-1960s was fundamentally flawed, already acting outside Madison’s understanding of an equitable, popular government. This is not a charge that the Court was wrong in entering the political thicket, only that its reasoning was flawed, remains flawed, and has had a significant and negative impact on American representative mores since. The law began changing in 1963 and partisan polarization in Congress, according to Keith Poole and Howard Rosenthal, began approximately a decade later, and has been increasing ever since.99 The changes in our laws and mores have now 97 Madison, Writings, 75. Emphasis added. See PJM 14:179 Government 99 Keith T. Poole and Howard Rosenthal, “On Party Polarization in Congress,” in Daedalus, Vol. 136, No. 3, On Capitalism & Democracy (Summer, 2007), 104-107. 98 233 thoroughly penetrated our highest representative institutions and are rapidly dissolving the communicative processes central to the maintenance of liberty and equality in our society. Wasserman’s analysis of county voting data for the last seven presidential elections, from 1992 to 2016, shows that the number of counties where one party or the other is winning by more than twenty percentage points over the last generation has increased almost exponentially.100 We are, and have been for quite some time, sorting ourselves into groups that most look like us, think like us, share a similar economic status, have attained a similar level of academic achievement, and share a variety of other miscellaneous interests. Most importantly, as the spheres we live in become more homogeneous, our opinions are left unrefined and unchallenged. “The latent causes of faction are thus sown in the nature of man…[a]s long as the connection subsists between his reason and his self-love, his opinions and his opinion will have reciprocal on each other; and the former [opinions] will be objects to which the latter [passions] will attach themselves.”101 It should be no wonder then, that as we have become more homogenized as geographic factions, that we have also become more polarized and unequal. This geographic self-sorting has been fueled by a growing ethos to “find one’s tribe,” to seek out like-minded individuals and work together to create a network or community of shared interest.102 In a basic sense this is finding a group of friends with which to ride bikes, or make baked goods, or serve at a local food bank or service club – in other words, it looks like fun and it 100 Wasserman, https://fivethirtyeight.com/features/purple-america-has-all-but-disappeared/ Federalist 10, 73. 102 One recent argument presents the opposite side of what could be called the problem of belonging – we long to belong, it is part of the impulse that keeps us in civil society, and as Junger argues, it is essential to our psycological health. However, as Madison argues, without confronting conflicting opinions, we cannot become fully rational beings. There is a mean which must be intentionally maintained. See Sebastian Junger, Tribe: On Homecoming and Belonging, (New York: Hachette Book Company, 2016). 101 234 sounds like Tocqueville’s praise for the essential nature of associations in democratic societies. However, empowered by the mores of equity (and thus justice) as majoritarian control, its more advanced form has taken the shape of political activism which announces itself as the voice of a larger body whose size gives it a claim to rule, a claim to demand justice. This does not mean that the claims made by these groups lack merit, or that they are not worthy of redress, but they are made with the language of command and the passion of force and not with an appeal to reason or through deliberation.103 The homogenization of opinions and interests has accelerated with the advent of social media. Journalist Nick Bolton captures the birth of Twitter beautifully by following the lives of its founders through the moments in their lives that shaped their desires to build such a communication platform.104 Each of the founders had a different end for the platform in mind as they built it – a tool for news dissemination, a tool to send mass updates to friends on your current state of mind (and later your location), and a tool to network and communicate with those beyond the sphere of your daily life – all of which sound ideal and filled them with the enthusiasm necessary for such a project. But what each of them had in common was a longing to be connected with others like themselves, to overcome the various degrees of social isolation they experienced growing up and continued to feel as they built the platform. And it turns out, that end – and not any of the others – is the true economic value of social media and has become its maximized function. Social media finds others like us, its algorithms monitor our behavior and 103 Yes, I know, this will upset many. They will cite ____ recent event in the news. They will passionately explain the justice of, and therefore justify, the forceful appeal. That’s my point. Let’s talk about it. It’ll be good for both of us. 104 Nick Bolton, Hatching Twitter: A True Story of Money, Power, Friendship and Betrayal (New York: Portfolio Hardcover, 2013). 235 determine from the content we interact with which content, and content creators, should fill our screens and command our attention. Social media has been a remarkably successful platform because it fulfills a primal urge to find others like us, and to be reinforced in our opinions. Man is timid when alone in his own opinions, but he becomes more recalcitrant in his beliefs as he feels a greater number of people agree with him.105 This is not a problem of technology, but a problem of human psychology. Madison identifies the extent of the territory, and the resulting multiplicity of opinions which result from that extent, as the “circumstance principally which renders factious combinations less to be dreaded” in the American republic.106 Our geographical sorting and the preponderance of information we consume through targeted content short circuits this principle circumstance, deflating the sphere. President Obama, to great effect, utilized social media’s capacity to target voters with certain identified beliefs and make passionate appeals directly on their preferred issue during his first campaign in 2008.107 In 2012, he utilized a previously untouched source of data on cable TV users in “an unprecedented marrying of detailed information on viewing habits and political predispositions” to again motivate potential voters with passionate, issue-specific appeals.108 Throughout his Presidency, Obama was hailed as a savant, forward-thinking user of social media, using the various platforms as a form of 105 See Chapter 3, fn6. Federalist 10, 78. 107 David Carr. “How Obama Tapped Into Social Networks’ Power” NYTimes.com http://www.nytimes.com/2008/11/10/business/media/10carr.html (accessed March 15, 2017); Bishop correctly points out that the George W. Bush campaign was an innovator in demographic targeting, though the personalized capacity of the message was magnitudes less than what the Obama campaign was able to accomplish through social media. See The Big Sort, esp. chap. 11. 108 Jim Rutenburg, “Secret of the Obama Victory? Rerun Watchers, for One Thing.” NYTimes.com http://www.nytimes.com/2012/11/13/us/politics/obama-data-system-targeted-tv-viewers-for-support.html (accessed March 15, 2017). 106 236 democratic, accessible-to-all outreach. But as the Obama administration prepared to transfer its social media accounts to the new incoming administration of the opposite party, the potential downside of these platforms came into focus: “these projects also affirm the dark underbelly of the social media era. The compression of complex ideas into tweetable sound-bites. The victory of sentiment and affect over reason and fact on the internet.”109 This is not a problem of technology, but a problem of human psychology. What we have been taught about representation, both by the law and in academic texts – that it is about power, control, the transfer of popular will into action, and that, when effective, it responds quickly to our expectations – has worked itself more fully into our mores. This education in representation has changed our culture.110 Madison warns that we are naturally inclined toward passion over reason, to our own immediate interests over the long-term and common good, and he developed a system of representation which could overcome that natural proclivity. The Court’s theory of representation does the opposite, and empowers the majority to exercise its passion and make claims to rule based on that passion. As Madison explains, and modern science confirms, the more people agree with a point, the more likely you will agree with 109 Ian Bogost, “Obama Was Too Good at Social Media.” TheAtlantic.com https://www.theatlantic.com/technology/archive/2017/01/did-america-need-a-social-mediapresident/512405/ (accessed March 15, 2017). 110 The counter-argument here would be that, across most western regimes, a preference for authoritarianism is rising, and a US Supreme Court decision cannot explain that shift. This argument relies on the historicist assumption that democracy will not slide back into the regime cycle identified since ancient times. The Court’s representational reasoning is more akin to that of other western nations in its emphasis on majoritarian control, so I do not find the similar preference for authoritarianism surprising. Alarming, but not unexpected. See Pippa Norris, “It’s not just Trump. Authoritarian populism is rising across the West. Here’s why.” WashingtonPost.com https://www.washingtonpost.com/news/monkey-cage/wp/2016/03/11/its-not-justtrump-authoritarian-populism-is-rising-across-the-west-heres-why/?utm_term=.3b48b6b77450 (accessed March 15, 2017). 237 them.111 This is precisely why the language of modern political discourse and persuasion is situated firmly in ratings, opinion polls, and consensus. Efforts to fight back against the effects of party polarization have begun to appear across the nation, but most are so new that their success cannot yet be ascertained. Many States have begun to transfer the authority to redistrict to separate committees or commissions which reduce or remove legislator participation in the drawing of new lines. Florida voters, in 2010, passed an amendment to the State constitution which prohibits drawing district lines “to favor or disfavor an incumbent or a political party,” but California and Ohio voters rejected similar initiatives. Nicholas Seabrook, in his study of a growing number of academics who are calling for more electoral competition as the remedy to our present partisan ills, observes that political competition has always had and continues to occupy a privileged position in the canons of American democracy. This attitude is not simply based on normative considerations: many empirical studies have uncovered links between competitive elections and a number of positive democratic attributes.112 Partisan competition is, in Seabrook’s understanding, the key to responsive government. However, this is not Madison’s understanding, though this is not a conclusion which is immediately clear to one who has only read Federalists 10 and 51. As we have seen from a more comprehensive reading, Madison has a more nuanced understanding of competition, apparent in the distinction between conflict and contention. The distinction, as we saw in the development of Madison’s thought in comparison to Montesquieu’s, is derived from the politics of contestation, but the similarity stops there. Madison is for the conflict of ideas, opinion, 111 Tocqueville also discusses this problem, as the perfection of democratic tyranny. Tocqueville, I.II.7, 239245. 112 Seabrook, 96. 238 interests, passions, and ambitions. In the conflict between disparate versions of each category above, all of which are natural byproducts of man living free, the public views are refined and enlarged. In engaging with ideas other than our own we see a world beyond ourselves, our passions are tempered, and our interests are expanded to include not only ourselves but those around us, and ultimately all those of our nation. This conflict shows us the reason in not letting our passions rule. Contention, on the other hand, is a passionate appeal to force which makes a clear delineation between mine and thine. It is a form of contestation which is legitimized by the institutionalization of interests fundamentally opposed to one another in the hope that these entrenched interests will provide the tension necessary to keep the regime balanced, not unlike a keel and masts on a ship counterbalance one another through the application of opposite forces. Contention has no place in Madison’s thought as it relies on inequality to maintain its institutional form: “This is as little the voice of reason, as it is that of republicanism.”113 Madison’s desire to use conflict to refine public opinion, to subject an individual’s interest to a heterogeneous mix of opinions and interests so that majoritarian rule would also be inherently concerned with the protection of minority rights, is fundamentally opposed to the maximization of electoral competition for the sake of contention. Madison would not maximize districts for party competition – he always refers to parties as undesirable political realities that should be avoided if at all possible, but if unavoidable, they should not be fostered.114 Madison would maximize districts for a conflict of interests that would require citizens to look beyond themselves and engage in a communicative process that is conducive to the rule of reason and not 113 114 PJM 14:198 Parties. PJM 14:197-8 Parties. 239 an assertion of force. The political realities of our own partisan sorting, and the proliferation of social media which can be used to feed our least desirable human qualities if we choose to limit our own spheres, are problems that would give Madison pause, but they would not change his principles. Still, a popular effort to reduce party polarization, both in the electorate and in our representatives, will not be successful without a shift in the law, namely a reconciliation between the two conflicting lines of jurisprudence. This does not require a wholesale rejection of the Court’s actions in the political thicket, but it will require a shift from basing reapportionment case law on the Equal Protection clause to the Due Process clause. Justice Clark, in his concurring opinion in the first case of the apportionment revolution, laid out the reasoning for basing reapportionment jurisprudence in the Due Process clause. The most likely effect of this shift will require the invalidation of the second section of the 1982 Voting Rights Act, but such an action would only bring it in line with the Court’s rule on statutory intervention in Constitutional decisions, and remove a strange, glaring exception and not create a new one. As for the second line of jurisprudence, the Court has a well-developed body of substantive due process jurisprudence upon which it could support racial minorities from unreasonable and unjust majorities. The Court has already changed the mores in favor of equality in representation, and in uniting the competing strands of representational jurisprudence under the Due Process clause, it will serve to move mores away from majoritarian claims toward efforts to develop the proper communicative processes in accordance with the law. Reading Madison – more fully, more thoughtfully – will not solve our immediate political problems, but it will give us an education in the principles necessary to produce a properly effective reform movement. What we have been taught about representation is fundamentally 240 flawed and inclined to perpetuate the partisan polarization that has increasingly become the focal point of our politics since the mid-1970s. 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