The first essay of The Federalist provides a convenient point of departure for exploring Publius’s conception of republicanism and the problems associated with it. Towards the end of this essay, he informs us that among the “interesting particulars” he intends to take up in the subsequent papers is “The conformity of the proposed Constitution to the true principles of republican government” (36). The word “true” immediately attracts our attention because it clearly suggests that mistaken or distorted principles or notions of republicanism are abroad. Moreover, though this is more debatable, we may also surmise that Publius wants to undertake this mission because the proposed constitution, when “measured” against these mistaken principles, turns out to be something less than republican. We might also infer that he feels the need to show that the character of the proposed Constitution is in fact republican because if it were otherwise the people would not and/or should not ratify it. Indeed, at a later point, he does write that “if the plan of the convention … be found to depart from the republican character, its advocates must abandon it as no longer defensible” (39:240).
From the outset, then, we have good reason to believe that republicanism, as well as the republican character of the regime, are going to be important concerns for Publius. And this belief is confirmed when we find that the conformity of the proposed system to the true principles of republicanism is the first order of business in his “candid survey of the plan of government reported by the convention.” He sets forth three reasons for this priority, each of which stands on somewhat different grounds: [a] “no other form would be reconcilable with the genius of the people of America; [b] with the fundamental principles of the Revolution; or [c] with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government” (39:240).
From this first essay we also learn a little bit about what, in Publius’ s view, the abiding principles of republicanism should not be – a matter of some interest in light of certain contemporary notions of republicanism which stress the primacy of liberty and rights. Shortly before his reference to the “true principles of republican government,” he observes that historically the “liberties of republics” have “more often” fallen victim to “a dangerous ambition [that] … lurks behind the specious mask of zeal for the rights of the people than “to the” zeal for … firmness and efficiency of government.” “An over-scrupulous jealousy of danger to the rights of the people, “he remarks, can be the “stale bait for popularity at the expense of the public good.” He cautions that in the debates over ratification even “an enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty” (35).
Now, whether Publius associated the unalloyed zeal for the protection or advancement of “rights” or “liberty” to be among the false principles of republicanism – or, perhaps, as derivatives therefrom – is problematic. That they are not part of his “true” republican principles is, however, clear enough. But what is more important, we see at an early stage that his brand of republicanism must be compatible with and capable of accommodating institutions and processes that provide for “firmness,” “energy,” and “efficiency” in government, as well as for identifying and advancing the “public good.”
The “true principles” of republicanism emerge in their fullest form in Federalist 39 where Publius undertakes to discover “the distinctive characters of the republican form” (240). At the outset of his discussion he notes that these characteristics are not to be derived from usage; that is, by looking at the regimes which have been labeled “republican” by “political writers.” While, he remarks, Holland, Venice, and Poland have all been called republics, their governments – though different from each other in form – lack any popular foundations. And, he continues, England, commonly referred to as a republic, “has one republican branch only, combined with an hereditary aristocracy and monarchy” (240-41). He concludes: “These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions” (241).
Publius proceeds to provide a stipulative definition: “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 the 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.” He qualifies and expands upon this definition in the passages that follow. “It is essential,” he maintains, “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” (241). This requirement would also exclude “mixed” regimes such as Great Britain from the republican fold.
To this Publius is quick to add another qualifier; namely, “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.” This is a particularly important caveat because, as he puts it, “otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character” (241). What is more, this stipulation, we see at once, allows for flexibility and latitude in shaping institutions and procedures, within the confines of true republican principles, to provide for the attributes of good government including those noted in the first essay such as energy, efficiency, and firmness. This is a matter to which we will have occasion to return shortly.
Publius has no difficulty in showing that the proposed Constitution conforms with the ‘accountability’ aspect of this conception of republicanism: “The House of Representatives … is elected by the great body of the people. The Senate … derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people … Even the judges, with all other officers of the Union, will … be the choice, though a remote choice, of the people themselves. “If” any further proof be required of the republican complexion “of the proposed Constitution,” the most decisive one,” he maintains, “might be found in its absolute prohibition of titles of nobility, both under the federal and State governments” (242). Later, in Federalist 57, when discussing the composition of the House of Representatives, he takes pains to emphasize the republican ‘openness’ of the system with respect to who may vote and who may hold office. “Who,” he asks, “are to be the electors of the federal representatives?” He answers: “Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States.” And, “Who are to be the objects of popular choice?” Again, stressing the system’s conformity to republican principles, he answers: “Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people” (351). Indeed, without going into great detail on this point, the basic features of Publius’s republicanism as set forth in Federalist 39 never seem to be very far from his mind in his discussions of the institutions and processes of the proposed system.
Finally, though Publius does not mention majority rule as a republican principle in Federalist 39, he does so elsewhere. In Federalist 10, for instance, he contends that “relief from minority factions in the extended republic” is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote” (80). Indeed, virtually the whole of Federalist 10 is concerned with the knotty problem of how to control the effects of majority factions – unjust and oppressive majorities – which can legitimately lay claim to rule in republics. In Federalist 22, by way of pointing up the inadequacy of the Articles, we gain a deeper appreciation of his commitment to the majority principle. Here he declares that the “operation” of the Articles “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail” (146). Nor is this all. He rails against the Articles because it gives “a minority a negative upon the majority” which, “in its tendency,” subjects “the sense of the greater number to that of the lesser number.” He laments that “a sixtieth part of the Union … about the proportion of Delaware and Rhode Island,” has been able to bring the government under the Articles to a standstill, and he compares this situation to that of the “Polish Diet, where a single veto has been sufficient to put a stop to all their movements” (147). This process of minority obstruction or rule, he contends, has produced “tedious delays; continual negotiation and intrigue; [and] contemptible compromises of the public good” (148).
On the Nature of Majority Rule
Aside from giving his reader a pretty clear notion of the principal elements of republicanism in Federalist 39, Publius also conveys, albeit indirectly, some idea of the character of the republicanism he envisions. To begin with we see that his republicanism centers on popular control, either direct or indirect, over the rulers; a form of accountability whose chief end is to “maintain a proper responsibility to the people” on the part of the rulers. As such the nature of his republicanism is congenial to what Joseph Schumpeter’s terms the ‘competitive ‘ or ‘modern’ model of democracy wherein “the deciding of issues by the electorate” – the essence of what Schumpeter terms “classical democracy” – is subordinated “to the election of the men who are to do the deciding.” Certainly Publius’s attention is fixed on a variety of matters surrounding the election of office holders, not the least of these being the concern to secure the election of “fit” characters. To put this somewhat otherwise, Publius clearly does not paint a picture of republicanism in “classical” terms wherein, to borrow from Schumpeter’s analysis, “the people itself decide issues through the election of individuals who are to assemble in order to carry out its will.” Had he done so, his republicanism would have centered on the requirement that institutions not only accurately reflect, but act upon, the preferences of popular majorities. Instead, he emphasizes the popular foundations of government (that is, that it be “derived from the great body of the people “) and the periodic accountability, either direct or indirect, of the elected officials.
We may profitably pause here to note that the distinction between these forms of republicanism is an important one given the modern critiques of Publius’s republicanism, many of which proceed from this “classical” perspective. Without going into detail, these critiques point up deviations in our system from the principles of majoritarian institutions and processes; deviations which, it is commonly charged, either distort or thwart the popular or majority will. It is but a short step from this conclusion over to the proposition that Publius (and the Founders) sought to protect entrenched minorities of one kind or another. Vernon L. Parrington’s commentary on the theory of republicanism underlying the Constitution – important because it follows the lead of James Allen Smith (Parrington’s intellectual forefather and the most prominent of the early populist critics of the Constitution and the Founders) and provides the grounds for the more modern and sophisticated critics (e.g., Dahl, Schattschneider, Burns, and political party reformists) – illustrates how the classical assumptions are subtly brought to bear in evaluating the Framers’ handiwork. For instance, at one point Parrington writes: “In a world moving inevitably towards manhood suffrage, a sharp alignment of parties with definite platforms was greatly feared by the minority, for the organization of the rank and file of voters must end in majority control. An honest appeal to the people was the last thing desired by the Federalists, and the democratic machinery of recalls and referendums and rotation in office, which had developed during the war, was stigmatized as factional devices which in the end must destroy good government.” But, as we have intimated, the basic shortcoming of such critiques stems from the fact that Publius – and we must assume the Framers, as well – held to a republicanism of a different character which necessarily must be “measured” by different standards or principles than those of the classical model. In other words, these modern critiques are largely irrelevant to the Framers’ and Publius’s undertaking which simply did not embrace the precepts of plebiscitary democracy central to the classical conception.
What is relevant for our purposes are the reasons why Publius’s republicanism conforms with the ‘competitive’ model with its emphasis upon the election of men who will do the deciding. We do not mean to suggest that he was consciously offering up these reasons to justify his type of republicanism over the classical conception or even that he thought in terms of these models. On the contrary, it may well have been that his general approach to republicanism was not even a matter of conscious choice. This is to say, the competitive view of republicanism – at least as it pertained to the purposes and functions of the electoral processes – may simply have been ‘accepted’ without question largely because it was part of the political landscape with which he was so familiar. In fact, he even formulates the overriding purposes of the political order in a fashion that stresses the crucial role of representatives and elections in securing the public good through responsible government. “The aim of every political constitution is, or ought to be,” he writes, “first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precaution for keeping them virtuous whilst they continue to hold their public trust.” “The elective mode of obtaining rulers,” he continues, “is the characteristic policy of republican government.” “The most effectual means” for “keeping them virtuous” while in office, for “maintain[ing] a proper responsibility to the people,” he contends, “is a limitation of the terms of appointment” (57:350-51).
This formulation – particularly given the functions which he ascribes to the elected representatives – suggests another reason why the elements of his republicanism fit in so well with the competitive model: namely, he may well have believed that, in the ordinary course of affairs, the representatives were more likely to act in accordance with and advance the common good than popular majorities. We do know that he believed that popular majorities, intending the public good, might well be misguided. At one point he stresses that majorities “may call for measures which they themselves will afterwards be the most ready to lament and condemn” (63:384). At another place he observes “the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it” (71:432).
We do know for certain that he regards the representatives as better situated than popular majorities to formulate rational policies and to determine how best to promote the public good. This is particularly true in the extended republic. “No man,” he holds, “can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate.” He concedes that “a part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations.” But, he adds, “another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it” (53:332). As far as “a single state” is concerned, Publius maintains the “requisite knowledge” for sound legislation” relates to the existing laws which are uniform throughout the State and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people.” He is quick to point out, however, that “the great theater of the United States presents a very different scene.” In this “great theater,” he writes,” the laws are so far from being uniform that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learned in any other place than in the central councils, to which a knowledge of them will be brought by the representatives of every part of the empire” (53:333). At another point, he remarks, “on a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States” (56:348- 49).
In this connection, and at a more general level, it may well be that Publius did not envision the normal political processes in the extended republic under the forms of the proposed Constitution in terms of a grand march of popular majorities seeking to impose their preferences or will through the legislature. While he was, to be sure, concerned about majorities that supported unjust or oppressive measures, we have reason to believe that he thought the political processes would be less tidy and more complicated than the classical model presupposes. For instance, if “the principal task of modern legislation” comes down to the regulation of “various and interfering interests” (10:79), then we can readily imagine the legislature on any given issue being concerned, not with a majority will or preference, but with the adjustment of conflict between several minorities whose membership, taken as a whole, amount to only a fraction of the total population. Indeed, from what Publius does tell us about the nature and dynamics of the political conflict he envisioned in the extended republic, he may very well have believed that the legislature would ordinarily operate against the backdrop of widespread popular apathy; a condition not unlike that we witness today. In this case, of course, accountability through competitive processes goes a long way towards assuring that the legislators will make decisions that fall within the confines of or are compatible with the basic and consensual beliefs and values of the people or, at least, a majority thereof. By “setting” limits within which the decision-makers find it prudent to operate, the majority can be said to “rule” in a ‘passive’ sense.
On a related matter, Publius regards “the idea of an actual representation of all classes of the people by persons of each class [as] altogether visionary” (35:214). But his arguments on this score go well beyond the impracticality of the legislature mirroring all the interests of society. He holds that any such provision to this effect would run counter to the impulses and desires of the people; that the legislature would never reflect society in this respect” under any arrangement that leaves the votes of the people free” (35:215). Moreover, he does not believe that it is necessary for all interests to have their agents in the legislature for their views to be duly considered. He illustrates these points by observing that “mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants in preference to persons of their own profession or trades” because “the merchant is their natural patron and friend” and they know that he can promote their interests in the legislative chamber better than they (35:214). More generally, he holds that most legislators will be “landholders, merchants, and men of the learned profession” with sufficiently broad knowledge of and sympathies with the wider variety of interests in society to handle their concerns and affairs justly. Of some interest in this respect, he sees members of the “learned profession” playing a very special role to which we will have occasion to recur below: “Will not the man of the learned profession who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them ready to promote either, so far as it shall appear to him conducive to the general interests of the society?” (35:218)
We shall see that Publius is concerned about the constitution of the legislature because it is so central to his thinking about the operations of republican government and the realization of the common good. Nevertheless, the role of the legislature in Publius’s theory differs significantly from that it assumes in the classical model. Specifically, in Publius’s conception the legislature cannot rule supreme in the name of the people because elements of constitutionalism come into the picture which serve to channel or restrict legislative authority. This is to say, he regarded the Constitution as “fundamental law” whose provisions cannot be changed by majorities through the processes of ordinary legislation; a position which he develops in Federalist 78 to defend the practice of judicial review. But his views on the status of the Constitution, as well as the novelty of this “fundamental law” conception, are most succinctly set forth in Federalist 53 when inquiring into the origins of the shibboleth, “where annual elections end, tyranny begins” (330). By way of explaining its likely origins, he observes that “wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of government” – a view which, we should note in passing, conforms with the logic of the classical model. “Even in Great Britain,” he continues, “where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable as well with regard to the Constitution as the ordinary objects of legislative provision.” Thus, he notes, there have been “several occasions” when the parliamentary terms of office have been lengthened by Parliament (331). In essence, he looks upon the annual election doctrine to be a reflection of a “laudable zeal to erect some barrier against the gradual innovations of an unlimited government” through an appeal “to some simple and familiar portion of time as a standard for measuring the danger of innovations” (332). But, he takes pains to emphasize, however legitimate this concern may be in Great Britain it is baseless in the American context. There is an “important distinction,” he writes, “so well understood in America,” which “seems to have been little understood and less observed in any other country,” “between a Constitution established by the people and unalterable by the government,” the situation in the United States, “and a law established by the government and alterable by the government,” the state of affairs in Great Britain (331).
Along with express constitutional prohibitions – e.g., that it pass no ex post facto laws or bills of attainder – Congress’s authority is limited in other less specific ways. As Publius informs us, the “republic of America” is “compound” ; that is, “the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments” (51:323). Thus, the principles of federalism and the separation of powers come into play. Whereas the separation of powers operates to confine the Congress to what is commonly understood to be the legislative function or realm, federalism serves to place certain matters or concerns outside the realm of Congressional authority. In Federalist 39, for instance, he draws the picture of the states possessing a “residuary and inviolable sovereignty” over “objects” within their jurisdiction (39245). Suffice it to say in this regard that Publius realizes that problems surround the definition of the two jurisdictions, and he does anticipate that controversies will surround their resolution. Though he is less than clear about precisely how jurisdictional conflicts should be resolved, he is consistent throughout in maintaining that they can only be settled at the national level.
Republicanism: Diseases and Remedies I
These observations concerning Publius’ s views on the status and functions of majorities, as well as his conception of republicanism, are borne out in his treatment of difficulties and problems associated with popular self-government. What is more, we gain further insight into his thinking about the processes of republican government by examining his concerns and the cures which he identifies. In this respect, two essays, numbers 9 and 10, which in so many ways complement each other, are highly significant.
Federalist 9, often completely overshadowed by Federalist 10, sets a ‘clinical’ tone which permeates much of Publius’s approach to the difficulties of republicanism. At the outset he asserts that “it is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of anarchy and tyranny.” Their occasional “intervals of felicity,” he observes, must be viewed “with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be over-whelmed by the tempestuous waves of sedition and party rage.” From these experiences, he maintains, “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, and have indulged themselves in malicious exultation over its friends and partisans” (71-72).
Publius’s response to these advocates is noteworthy for understanding the place of republicanism in his thinking and why the proposed Constitution assumed the form it did. While remarking that “stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms,” he concedes the thrust of their point. “It is not to be denied,” he writes, “that the portraits they have sketched of republican government were too just copies of the originals from which they are taken.” Indeed, he goes so far as to declare “if it had been found impracticable to have devised models of a more perfect structure, the enlightened friend to liberty would have been obliged to abandon the cause of the species of government [republican] as indefensible” (72).
Publius’s “enlightened friend of liberty,” we may assume, stands in sharp contrast to the zealots he refers to in the first essay who would maliciously extol liberty at the expense of public good and the requisite firmness or energy in government. The “enlightened friend” understands that, among other things, “the vigor of government is essential to the security of liberty” (1:35). Thus, it would seem, that the liberty Publius has in mind takes the form of ‘ordered liberty’ ; that is, a liberty that is protected and regulated by government in light of the common good. We need not delve very far into Publius’s conception of ordered liberty, however, to see that he cherishes it more than republicanism. That is, to put this otherwise, if ordered liberty and republicanism cannot coexist, if the “perpetual vibration between the extremes of tyranny and anarchy” cannot be curbed, then so much for republicanism. But, having structured the choice in these stark terms, he immediately writes of the “great improvement” in the “science of politics,” of “the efficacy of various principles … now well understood … which were either not known at all, or imperfectly known to the ancients.” “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election” are, he observes, “wholly new discoveries, or have made their principal progress towards perfection in modern times” (72). “They are means, and powerful means,” he argues, “by which the excellencies of republican government may be retained and its imperfections lessened or avoided” (72-73). To this list of principles “that tend to the amelioration of popular systems of civil government,” he adds “ENLARGEMENT of the ORBIT,” thereby introducing the notion that, contrary to traditional thinking, benefits for republican government can flow from states confederated on proper principles over an extended territory. His subsequent discussion of the “CONFEDERATE REPUBLIC,” which allows “for extending the sphere of popular government and reconciling the advantages of monarchy with those of republicanism,” complements his argument concerning the advantages of an extended republic in controlling the effects of faction presented in the following essay.
While these principles are the product of an improved “science of politics,” they do not constitute a “new science of politics” in the sense of a comprehensive, systematic, and interrelated set of principles, axioms, or assumptions which explain or describe political behavior. Rather, though highly significant for reasons that are apparent, they are principles which render republicanism compatible with ordered liberty or those conditions essential for its realization. What is noteworthy is that three of them – the first three cited – relate directly to the separation of powers. Though Publius does not address at any length the relationship between liberty and the separation of powers, from what he does say elsewhere we can piece together a fairly accurate picture of what he thought it to be. In Federalist 47 he declares that “no truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty” than that “accumulation” of the legislative, executive, and judicial powers” in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (301). He quotes from Montesquieu to give us some flavor of the tyranny to which he refers: “`When the legislative and executive powers are united in the same person or body … there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.`” Or should, he continues, still quoting from Montesquieu, the judicial power be united with the legislative, “`the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator`” “`joined with the executive,`” “`the judge might behave with all the violence of an oppressor`” (303). The absence of separation, in other words, would allow for a totally arbitrary and capricious formulation, execution and interpretation of the laws, a far cry from the uniform, equal, and predictable application of the laws required by the rule of law.
While it is beyond our purpose here to delve very far into Publius’s views on the separation of powers, we should note that he believed the separation would insure the operation of the ‘reflexive’ principle; that is, that the laws passed by the legislature, precisely because they would be executed and interpreted by separate and independent departments, would apply equally to the legislators, their family and friends, as well as to the ordinary citizens. As he puts this, along with “frequent elections,” duty, interest, or gratitude, another “circumstance” which serves to restrain representatives “from oppressive measures” is “that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society” (57:352). So long as this state of affairs exists, of course, the legislators would be unlikely to pass oppressive laws.
The reflexive principle indicates the critical importance of maintaining the separation between the branches, a matter which deeply concerns Publius throughout the essays. Indispensable to this maintenance, he believes, are the “legislative balances and checks” to which he alludes in Federalist 9. Writing in Federalist 48, he points to a special problem confronting republics in providing for adequate separation between the branches; a separation which he holds to be highly instrumental in obviating the difficulties which had overwhelmed the “petty republics.” In this paper, he admonishes the American people because “they seem never for a moment to have turned their eyes from the danger, to liberty, from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority.” This is all very well, he writes, “where numerous and extensive prerogatives are placed in the hands of an hereditary monarch” or even “in a democracy” where the people’s “incapacity for regular deliberation and concerted measures,” render them vulnerable “to the ambitious intrigues of their executive magistrates.” “But,” he continues, “in a representative republic where the executive magistracy is carefully limited, both in the extent and duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passion which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passion by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all the precautions” (309).
Looking at the political situations within the states, he could assert that “the legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex” (48:309). He also recognizes that “it is not possible to give to each department an equal power of self-defense” because “in republican government, the legislative authority necessarily predominates.” The answer to this “inconveniency,” he contends, “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 the common functions and their common dependence on the society will admit” (51:322). But even this is not sufficient: “As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require … that it should be fortified.” In this regard, he sympathetically considers the alternative of an “absolute negative” on the legislature, but concludes that, on balance, it might not be “altogether safe” or “alone sufficient” (51:323). He holds out the prospect that a “qualified connection” between the president and Senate might develop which would compensate for the “defect of an absolute veto,” whereby the Senate or a sufficient portion of it would ally with the president to uphold his authority against legislative encroachment.
What is evident from this brief survey of Publius’s concern with maintaining the separation of powers is that he emphasizes the need for institutions and procedures which, from the vantage point of classical democracy, can only serve to dilute or stymie the majority will. For instance, in the classical model there is no need for two legislative chambers, each capable of ‘checking’ the other; such a provision only opens up the possibilities of distorting the majority will. Consequently, what constitutes a deviation from republicanism from the classical view is, for Publius, necessary to rescue “this form of government … from the opprobrium under which it has so long labored” (10:81).
Republicanism: Diseases and Remedies II
Two other principles of the improved “science of politics” mentioned in Federalist 9, representation and ” ENLARGEMENT of the ORBIT,”are best considered in conjunction with Publius’s extended republic theory set forth in Federalist 10. As noted above, Publius’s discussion of the “CONFEDERATE REPUBLIC” complements the argument of Federalist 10 to the effect that republican government, contrary to traditional teachings, is possible over an extensive territory comprised of diverse and competing interests. In Federalist 9, he emphasizes how it is possible to enjoy the benefits of republican government while, at the same time, overcoming a weakness traditionally associated with them, namely, their incapacity to deal swiftly with sufficient force against external dangers. To this end he quotes approvingly from Montesquieu to the effect that a confederate republic – a “form of government … by which several small states agree to become members of a larger one – possesses the capability – to withstand an external force [and] may support itself without any internal corruption.”
Quite simply, under this arrangement, the number of states in the confederacy can be increased to the point where the member states collectively possess “a degree of power as to be able to provide for the security of the united body – (74). As for internal matters, the member states could unite if any member state” should attempt to usurp the supreme authority- (75). Likewise, in Montesquieu’s account, the states could unite to put down insurrections in members states.
In Federalist 10, Publius may be said to turn to a problem common to all regimes, but of a different and more specific character than those alluded to in Federalist 9; namely, how to prevent the sovereign – in this case, the majority – from acting in an unjust or oppressive manner. His concern, to put this in slightly different terms, is with majority “factions” or majorities “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” (78). What is more, he seeks to prevent rule by majority factions without violating or compromising the republican principle of majority rule. In his words: “To secure 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, is then the great object to which our inquiries are directed” (80). He reiterates his position in somewhat different terms in Federalist 51, where he rejects the idea of “creating a will independent of the majority – that is, of the society itself” to curb factious majorities (323). This he deems “at best” only a” precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties” (324). (By way of anticipating a difficulty we will deal with later, critics see a conundrum in the idea of restraining majorities consistent with republican principles.)
Over the decades, Federalist 10 has been examined with great care from numerous points of view. Here, for the most part, we will concentrate on those elements of the extended republic theory which bear most directly on Publius’s principal objective. We can profitably begin by briefly looking at the remedies he rejects, as well as the reasons why, because this will indicate the character and dimensions of the problems he perceived in providing for popular government free from the ravages of majority factions. We will gain, as well, an appreciation of his solution to these problems.
Publius sees “two methods for curing the mischief of faction: the one, by removing its causes; the other by controlling its effects.” The solutions or remedies he rejects fit under the first of the methods, removing the causes of faction. As he perceives it, removing the causes would involve either “destroying liberty which is essential” to the existence of faction, or “giving to every citizen the same opinions, the same passions, and the same interests.” As for destroying liberty, as we might expect, he holds “the remedy worse than the disease.” “Liberty,” he writes, “is to faction what air is to fire, an aliment without which it instantly expires.” And just as we would not do away with air, essential to life, because “it imparts to fire its destructive agency,” so, too, he reasons, it would be absurd “to abolish liberty, which is essential to political life, because it nourishes faction” (78).
The second method for removing the causes – giving citizens the same opinions, passions, and interests – he holds to be “impracticable.” “As long as the reason of man continues fallible, and he is at liberty to exercise it,” he contends, “different opinions will be formed.” And, he continues, “as long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves.” “Not less an insuperable obstacle to the uniformity of interest,” he maintains, is “the diversity in the faculties of man, from which the rights of property originate.” He regards “the first object of government” to be” the protection of – the “different and unequal faculties of acquiring property.” This, we come to see, serves to fuel factions because the “possession of different degrees and kinds of property” which necessarily results from the diverse faculties of men “influence the sentiments and views of the respective proprietors” which begets “a division of the society into different interests and parties” (78). Indeed, as he subsequently points out, “the regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government” (79).
Thus, for Publius, “the latent causes of faction” are “sown in the nature of man” and are a fact of political life. That Publius could see the regulation of interfering interests to be the main task of modern government, however, would seem to bear upon the ability of the system to resolve disputes without succumbing to “tempestuous waves of sedition and party rage” that could be its undoing. Publius, drawing heavily from Hume, was aware that opinion/passion factions would form on the basis of principle or affection. Thus, he writes of divisions among men that have “inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for the common good” which originate from “different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice, an attachment to different leaders … contending for power; or to persons of other descriptions whose fortunes have been interesting to the human passions.” In many cases, the opinion/passion conflicts are simply irreconcilable; they cannot be resolved through compromise or give and take. On the other hand, interest based conflicts are normally tractable; differences between the contending interests can be adjusted, in large part because of their nature which allows for give and take, but also because the differences are infrequently those of principle.
To the foregoing it is essential to add that Publius envisioned complicated patterns of conflict between a wide variety of interests. While recognizing that the “most common and durable source of factions has been the various and unequal distribution of property” and that “those who hold and those who are without property have ever formed distinct interests in society,” he goes on to observe that there are a variety of interests – “landed,” “manufacturing,” “mercantile,” “moneyed,” and “many lesser interests” – which also compete in the political processes. The rivalry between them, and even within them, would seem to assure that the system would not be marked by an intense and potentially disruptive conflict between the haves and have nots.
Publius proceeds to compare the resolution of conflict between major competing interests to “judicial determinations” in which none of the interested parties ought to be judge of its own cause (79). He argues that “justice ought to hold the balance” between contending interests – e.g., creditors and debtors, manufacturing and landed – in the resolution of issues such as “the apportionment of taxes” which vitally affect them. But – no doubt with the experiences in several of the state legislatures in mind – he contends that this is not to be expected when one of the parties to the conflict has the number or means to prevail over the others.” The most powerful faction,” he writes, “must be expected to prevail” and “probably” without “a sole regard to justice and the public good.” For instance, the “apportionment of taxes,” in his judgment, “seems to require the most exact impartiality.” Nevertheless, he remarks, “perhaps, no legislative act” gives “greater opportunity and temptation … to a predominant party to trample on the rules of justice” (80). We should note, in passing, that he certainly must have believed this ‘bipolarity’ would seldom, if ever, arise over like matters in the legislature of the extended republic because of the multiplicity and diversity of interest. In this paragraph, as we shall emphasize later, he is picturing conditions which must be avoided in the decision-making councils.
Having identified this difficulty, Publius considers and rejects the notion “that enlightened statesmen will be: able to adjust these clashing interests and render them all subservient to the public good.” “Enlightened statesmen,” he observes, “will not always be at the helm.” But even if they were, he seems to suggest, they would not always be able to work their will because to do so would often require taking “ndirect and remote considerations” into account; considerations “which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole” (80). Here we can clearly see one of the crucial assumptions that underlies Publius’s general approach that is reflected in discussion of the institutions and processes set forth in the proposed Constitution; namely, individuals have a distinct propensity to pursue their immediate self-interest at the expense of the long term common good.
His observations concerning the primacy of immediate self-interest – both with regard to the possible role of enlightened statesmen and the behavior of dominant interests in the ‘resolution’ of conflict in the legislature – help us to understand the essential elements of his grand strategy when he turns to the second method “for curing the mischiefs of faction,” which, at this juncture, comes down to “controlling” the “effects” of popular majority factions. If a popular majority is united around some passion or interest which is factional, and if, furthermore, this majority is in a position to carry out its will, then it will behave in the same fashion as the “predominant” legislative parties and interests to which Publius refers. Consequently, he argues that the control of factious majorities must come about in one of two ways: “Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” Otherwise, “if the impulse and opportunity be suffered to coincide,” he warns, “neither moral nor religious motives can be relied on as an adequate control.” Indeed, he sees an inverse relationship between the need for controls or checks on the behavior of factious majorities and the efficacy of such appeals: when most needed, they are the least effective.
In light of this argument concerning the need to prevent a coincidence of impulse and opportunity, we can readily understand why Publius can contend that a “pure democracy,” where the people themselves assemble to make decisions, “can admit of no cure for the mischiefs of faction.” In such an arrangement there is nothing to prevent the union of impulse and opportunity; “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.” To this lack of impediment to impulse and opportunity, he attributes the “spectacles of turbulence and contention that have characterized such democracies” which, he remarks, have been “as short in their lives as they have been violent in their deaths” (81). This language, reminiscent of that he used in Federalist 9 to describe “petty” republics, indicates that, for all intents and purposes, he regards both pure democracies and small republics as being unsuitable for popular government.
Publius’s remarks on “pure democracy” are interesting from other angles. By implication, we can see in his line of reasoning a strong bias against the “classical” design of democracy whose end would be to reflect as accurately as possible majority preferences. Certainly, he would scarcely seem to be disposed to play up the plebiscitary potential of republican governments. Perhaps more significant in light of the context in which he was writing, his conclusions represent an eversion of the traditional argument for a small republic. He writes that the “theoretic politicians … who have patronized this species of government [pure democracy]” believed that “reducing mankind to a perfect equality in their political rights, they would at the same time be perfectly equalized and assimilated in their possession, their opinions, and their passions” (81). In other words, these theorists, according to Publius, have “erroneously supposed” that pure democracies would eliminate the causes of faction via the “second expedient” which he discusses at the beginning of the essay – i.e., reducing individuals to the same opinions, passions, and interests. But, for the reasons he has spelled out showing the impracticability of this alternative, he is free to summarily dismiss this supposition as “erroneous.” And this being the case, pure democracies and, we may assume, small republics will be eternally plagued with factions with which they have no hooks to grapple. Thus, the traditional theory, advanced by the Anti-Federalists, which stresses the connection between republicanism and small size is, on Publius’s showing, ‘wrong-headed’ republicanism and “smallness” are basically incompatible with one another.
Majority Factions: The Remedy
Having noted the fatal shortcomings of pure democracies, Publius sets forth the fundamental elements of his solution. He declares that “a republic” – which at this stage he defines as “a government in which the scheme of representation takes place” – “opens a different prospect [than that offered by pure democracy] and promises the cure for which we are seeking.” He then sets out to “examine the points in which it [a republic] varies from pure democracy” for an understanding of “both the nature of the cure and the efficacy which it must derive from Union” (81). While his subsequent analysis is primarily concerned with pointing up the advantages of the large or extended republic over a small republic in controlling majority factions, he uses the republic/pure democracy contrast initially to isolate the elements of his remedy that he will also employ in his large/small republic comparisons. These elements are two: representation (“the delegation of government” in a republic “to a small number of citizens elected by the rest”); and “the greater number of citizens and greater sphere of authority over which” a republican government “may be extended” (82).
Publius takes up these differences separately beginning with representation. He offers up extremes concerning the possible effects of representations. At one end, it could serve 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.” At the other, it might be that “men of factious tempers, or of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and they betray the interests of the people.” He sees “two obvious considerations” which “clearly” indicate that the “election of proper guardians” is more likely in the “extensive,” rather than the “small, “republic. The first is that, since reason dictates there must be some upper limit to the size of a legislative body, the voters in the large republic will have more “fit characters” from which to choose for the limited number of legislative seats. This position is, of course, predicated on certain unarticulated assumptions – e.g., that “fit” individuals will choose to run for office, that the people possess the capacity to identify “fit” characters and that, having identified them, they will vote them into office.
The second consideration is that the larger the size of the electorate, the “more difficult” it will be “for unworthy candidates to practise with success the vicious arts by which elections are too often carried” (83). [Later, Publius is to give us some idea of what he means by the “vicious arts.” “Reason,” he asserts, “assures us that” in a larger district, rather than the small, “a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the bribes of the rich” (57:354).] In the absence of these “vicious arts,” he goes on to maintain, “the suffrages of the people” will be freer and “more likely to center on the men who possess the most attractive merit and the most diffusive and established characters (83- 84). In this connection, Publius is aware that an electoral district can be so large that the representative may be “too little acquainted with … local circumstances and lesser interests,” or so small that local concerns and interests will blur his vision of national problems and goals. By way of indicating what he conceives the division of authority between the states and national government to be, he finds that the “federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures” (83).
With this said, Publius comes to the second of the great differences between pure democracy and a republic, namely, “the greater number of citizens and the extent of territory” which can be embraced under the republican form. He maintains that “it is this difference principally which renders factious combinations less to be dreaded “in extensive republics than in democracies or small republics. In showing this, he has recourse to his impulse/opportunity strategy: “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.” The opposite is true in the extended republic where the multiplicity of distinct interests renders “it less probable that a majority of the whole will have a common motive to invade the rights of other citizens,” or, if perchance it does, “it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.” At this point, he refers to “other impediments,” presumably to the formation of factious majorities and/or execution of their will, but cites only one: that the communication among those bent upon “unjust or dishonorable purposes” will be inhibited by a “distrust in proportion to the number whose concurrence is necessary. This impediment, he recognizes, depends upon a “consciousness” on the part of those seeking these ends; that is, a recognition on their part that the ends are “unjust and dishonorable” (83).
In the latter third of Federalist 51, Publius sets forth in slightly different form why he believes multiplicity and diversity of interest will serve as an impediment to the formation of factious majorities. The alternative to controlling majority factions “by creating a will independent of society” – which, as we have remarked, he regards as both a dangerous and ineffective solution – is, he contends, “comprehending in the society so many separate descriptions of citizens as will render an unjust combination of the majority of the whole very improbable, if not impracticable ” (324-25). Or, again, “whilst all authority in it [“the federal republic of the United States”] will be derived from and dependent on the society, the society itself will be broken into so many part, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority” (324). He sees a parallel between the “security for civil rights” and “that for religious rights”; the former depends on the “multiplicity of interests,” the latter on the “multiplicity of sects.” Not only, it seems, does he perceive multiplicity operating to prevent the formation of interested and factious majorities, he even affirms that given this multiplicity “a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (325).
By way of concluding this outline of Publius’s remedy for “the diseases most incident to republican government,” majority factions, we should note that he exhibits a theoretical consistency by arguing emphatically that the states will be more vulnerable to factious rule than the national government. He sees only dim prospects for a Rhode Island “separated from the confederacy”: “left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it” (51:325). Even within the Union, Publius does not regard the states to be safe from the ravages of faction. But factious movements that might enjoy success at the state level would not pose a danger to the national government; particularly, it would appear, those factions based upon principle or affection. Towards the end of Federalist 10, he claims that the deleterious effects of “factious leaders” will be confined to the confines of “their particular states,” as will the impact of “a religious sect [that] may degenerate into a political faction.” He is less sanguine about the prospect of confining interest factions.” A rage for paper money, for an abolition of debts, for an equal division of property” – all of these, in his view, factious ends – is only “less apt to pervade the whole body of the Union than a particular member of it” (84).
Questions and Problems: Fitting the Pieces Together
We have already had occasion to allude to the modern critiques of the theory embodied in The Federalist; a theory which, it is generally assumed, reflects the basic assumptions and broad goals of our Founding Fathers. We have also remarked that the harshest criticisms of Publius’s theory, in large part, issue from the perspective of the classical conception of democracy whose central concern is the faithful execution of the “will” or preference of the majority. A common theme in these criticisms is that while our system, operating pretty much along the lines Publius anticipated, may serve to prevent majority factions from coalescing, it also makes the formation of non-factious majorities extremely difficult. In other words, as we have already remarked, the charge is that conditions of the extended republic operate equally upon both the forces of “good” and “bad”; that, off at the end, Publius’s theory, while paying homage to the majority rule principle, in fact sacrifices this principle in order to control the effects of majority factions.
Perhaps no other single criticism reflects the gulf that separates Publius’s vision of republicanism from the classical model. Nevertheless it is useful in illustrating the broad outlines of Publius’s theory of republicanism – how the components of the theory relate to one another and to his more general concerns and values such as energy, stability, and liberty.
We can begin by noting that the central decision-making component of Publius’s republicanism is the legislature, not popular majorities. Indeed, it seems, Publius did not want popular majorities good or bad putting the members of the legislature under the gun, so to speak, on specific issues or policies; that is, popular majorities more or less commanding that the representatives do their bidding or else. The reasons for this we have already touched upon. A majority may have the best of intentions, but it may be ill-informed about relevant conditions and circumstances in all regions of the country. The legislature, on the other hand, provides the forum where this information can be had and digested. Moreover, public debate could seldom, if ever, achieve the high level to be found in the legislative halls between “fit characters.” In this connection, evidence of the central decision-making role of the legislature in Publius’s thinking, can be readily illustrated by his concerns over its size which reflect his desire to insure that reason, not passion, would hold sway in its deliberations. “The truth is,” he declares, “that in all cases a certain number [of representatives] at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purpose; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude.” And, then, in one of the more famous passages of The Federalist, he asserts; “In all very numerous assemblies, of whatever characters composed, passion never fails,to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob” (55:342).
The mere fact that majorities cannot easily form in the extended republic serves to secure or protect the critical decision-making role of the legislature. Or, put another way, the conditions associated with the extended republic operate to shelter the legislature from determined or prescriptive majorities, thereby helping to insure processes of rational decision-making. But it is not only with respect to rational decision-making that these conditions assume importance. In the absence of a bi-polar situation in the legislature, where the “predominant party” can judge of its own cause, justice is possible. Moreover, the diversity and multiplicity of interest – taken together with the fact that the representatives come from large, rather than small, districts – would certainly tend to insure that the representatives would not, on their own accord, divide along the lines Publius describes, On the contrary, in all likelihood on any given issue a sufficient number of representatives would be “distanced” or detached enough from the interests involved to act as a `balance’ between the contesting parties. For this reason a disinterested party would be decisive in the final resolution. For this reason, too, the conflicting parties would have to appeal to the disinterested representatives; appeals, not addressed to the realization of their immediate self-interest or to passion, but to the sensibilities of “fit characters.”
In showing this relationship between the conditions of the extended republic and representation – a relationship which avoids the central difficulty which Publius perceived at the state level – we are not, by any means, ‘jumping ‘ very far ahead of the text. Consider, first, what Publius has to say in Federalist 49 about popularly elected conventions that would assemble to redress alleged infractions of the separation of powers. We cannot help but note that his “greatest objection”  to any such scheme is that conventions so elected “would not answer the purpose of maintaining” the separation of powers (315). Why so? Because, as he sees it, the members of the legislature, the branch most likely to commit such transgressions, would sit in judgment of their own actions; they would be judges of their own cause. But, assuming otherwise, that the executive or judiciary were to prove more than a match for the legislature, either the “spirit of pre-existing parties, or of parties springing out of the question itself,” he argues, would determine the issue. Yet, any decision in which an interested, predominant party prevails, he points out, “could never be expected to turn on the true merits of the question.” And such, he asserts, would be the case with the decision emanating from a convention; “it would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The passions, therefore, not the reason of the public would sit in judgment.” This he holds to be the reverse of what should obtain: “it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” (317).
To put this matter into framework of our approach, the convention in these types of controversies will not be sheltered or protected by the conditions of the extended republic. The people, aroused by the involved parties, are virtually compelled to divide into two antagonistic camps, a division which is reflected in the make-up of the convention. No group holds a balance between the contending parties; thus, the rule of passion, not reason. In short, the convention pictured by Publius suffers every malady and shortcoming from which, we can safely assume, he believed the diversity of the extended republic would protect the Congress.
That Publius envisioned the ordinary operations of republicanism in the extended republic along the lines suggested here can be illustrated by reference to his own account of how conflicts would likely resolve themselves on the most sensitive matter of taxation. What would happen if, recurring to Federalist 35, the “merchants” and “landholders” comprised two antagonistic forces in the legislature on this issue? To be sure, Publius probably would deem any such division unlikely in the national chambers because, as we have already remarked, he acknowledges that these two legislative groups comprise many lesser, and frequently antagonistic, interests. Nevertheless, assuming such a division, and assuming also that one or the other group constituted a majority in the legislature, the predominant interest could be expected to “trample on the rules of justice” by judging favorably of its own cause. But from what he does say, any such confrontation is unlikely because, as we have already remarked, the “learned profession” constitutes a mediating group; its members “feel a neutrality” which will allow them to play the role of an “impartial arbiter” (216). In short, in this context, the members of the learned profession would constitute disinterested representatives who would hold the critical balance between the contending parties. But what is critically important, because they are “fit characters,” we have every reason to believe that they would adjudicate between these interests in a manner “conducive to the general interests of society” (216).
Viewing Publius’s republicanism from the vantage point of providing for an impartial adjudication of the differences between the various and interfering interests also helps to resolve certain troublesome aspects of his theory. One of the more significant of these arises in Federalist 10 where he informs us at one point that “enlightened statesmen” will not always be at the helm to prevent the dominant party from trampling on the “rules of justice” and that, even if perchance they are at the helm, they will not always prevail because of the propensity of the dominant party to pursue its immediate self-interest to the exclusion of long-term considerations of the common good. Yet, shortly after this, he argues that in the extended republic there is every likelihood of securing representatives whom he pictures in glowing terms: “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.” And the question arises: In describing the advantages of the extended republic, has he not had recourse to the very solution which he has just rejected? Are not the representatives he envisions in a large republic really enlightened statesmen?
We should note at the outset that any answer to this question must take into account Publius’s emphasis in both essays 10 and 51 on the multiplicity and diversity of interests. That is, any answer must explain why such diversity would be essential if he believed that the representatives – or at least a majority of them – would be enlightened statesmen? Again, by viewing the multiplicity and variety of interests as sheltering the representatives from the demands of a determined majority, this particular quandary can be resolved in a manner consonant with other elements of Publius’s approach. Simply put, multiplicity and diversity of interest allows for those ‘detached’ from or who have no interest in the particular conflict or controversy to act as if they were enlightened statesmen. We say as if – because unless disinterested, we can expect the representatives (save those who might be ‘eal’ statesmen) to act partially to promote those interests to which they are attached. In other words, and in keeping with what Publius writes in other contexts, the individual representatives are not free from the pull of interest or of passion. But from issue to issue, it would seem, Publius anticipated that there would be a number of disinterested representatives – with all the attributes of “fit characters” – sufficiently large to mediate in the fashion we have indicated above. What the election of “fit characters” helps to insure is that the representatives will have the inclinations and capacity to act the part of enlightened statesmen when given the opportunity – that is, when sufficiently detached from the competing interests.
In sum, for the reasons we have set forth, we can see why Publius could write in Federalist 14 that “America can claim the merit of making the discovery [of “the great principle of representation”] the basis of unmixed and extensive republics” (100-101).
With the foregoing in mind, we are also prepared to examine from a new perspective the charge that the conditions of the extended republic operate equally upon both factious and non-factious majorities. In this connection, our first observation must be that, at one level, the criticism is not without foundation. The extended republic does serve to inhibit the formation of majorities, good or evil. But, bearing in mind what we have said to this point about the role of the legislature in Publius’s theory, we also come to see why the system would serve to thwart the ends or goals of factious groups, while simultaneously enacting non-factious measures which advance the common good; how, that is, it would only operate to filter out the factious proposals, while allowing the non-factious to ‘flow’ through. Concretely, for reasons we have already spelled out, we are on sound grounds in believing that a factious interest would have to overcome all the hurdles of the extended republic to get its way. Put otherwise, until such time that a faction becomes a popular majority and can ‘compel’ the legislature to act through force of numbers, its demand will not be acceded to by a majority of the representatives. There is no reason to believe, however, the non-factious interests would have to overcome these hurdles to get their way, or at least a fair hearing in the legislature, because the representatives, given their attachments to or “communion” with the people, would themselves pick up their cause thereby bypassing the processes of popular majority formation. This view of the process, we submit, accounts for the fact that Publius did not see the conditions inhibiting majority formation inhibiting energetic government as well. Within this framework, we should remark in passing, we can also see why Publius is so concerned about the legislature infringing on the other branches and taking all powers onto itself; namely, the legislators have a common institutional interest upon which they might act in unison. The processes that result from an extended republic to control the effects of faction simply do not come into play in maintaining the separation of powers.
This is not to say that Publius did not perceive popular majorities forming. As we have already noted, he believed that the conditions of the extended republic rendered the formation of these majorities “on any other principles than those of justice and the general good” remote. He does not entirely rule out the possibility that majority factions might form and get their way. He tells us that “seldom” will majorities form on a basis other than the general good or justice (51:325). At another point he writes that an “unjust combination of a majority of the whole” is “very improbable, if not impracticable,” thus leaving its possibility up in the air. But four sentences later, he writes that individuals and minorities “will be in little danger from interested combinations of the majority” which would put it squarely back into the realm of the possible (51:325).
This consideration leads to a less sophisticated, but far more common, attack on Publius’s republicanism; one which dwells upon one or more of the constitutional features, normally those associated with the separation of powers, which seemed designed to thwart majority rule. Publius prefers to look upon those features frequently singled out by his critics – e.g., bicameralism – as contributing to good government. While it is beyond our purpose here to delve at any length into the matter of why he regarded the separation of powers as indispensably necessary, we cannot help but note that (as we gleaned from Federalist 9) its main features are designed to lend stability to the system. For instance, Publius contends that “the regular distribution of power into distinct departments” and the “legislative balances and checks,” so essential for maintaining separation, also contribute mightily to avoiding “the mischievous effects of mutable government” (62:380). Publius vividly portrays the internal effects of mutable policy, particularly with regard to how such a policy “poisons the blessings of liberty itself.” In this respect, he writes, “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be rule of action; but how can that be a rule, which is little known, and less fixed?” Beyond this, he charges that mutable policies accord an “unreasonable advantage … to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people,” and they discourage, as well, “every useful undertaking, the success and profit of which may depend on a continuance of the existing arrangements” (62:381).
What we can see from this example is that at least the major deviations from the majority principle to which Publius’s critics refer can be pictured as providing for conditions that are prerequisite for any government, republican or not, that is designed to endure; that, put otherwise, these deviations are necessary, if there is to be any degree or form of popular rule. Certainly, the deviations can be defended, on the basis of Publius’s teachings, as essential for preserving values more highly cherished than republican government. But, leaving these considerations to one side, we come upon an important aspect of Publius’s thinking about the nature of the republicanism he envisioned by facing up to the issues his critics pose at this level, which, without prejudice, can be put as follows: Can popular majorities – even those bent upon self-destruction – make their way through the obstacles posed by the system which allow, on paper at least, for a minority veto? Cannot powerful and highly organized minorities use the constitutional machinery to block popular majorities?
If we look only to the Constitution itself the answer seems simple enough. But Publius presents us with a complex answer that goes to the spirit of the system rather than simply to its mechanics. We see this best perhaps in Federalist 58 where he takes up the question of what would happen if a coalition of the smaller states in the Senate were to block a constitutional augmentation of the House membership in order to curb any increase in the power of the larger states in the lower chamber. Despile the constitutional equality of the two chambers, he writes, “it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses.” Now these factors constitute an advantage which the House would normally seem to enjoy over the Senate in showdown situations. But, in this particular case, he sees additional advantages in the position of the House based upon considerations of an essentially different nature. The position of the House, he observes, will be supported “by right, by reason, and by the Constitution.” What is more, those opposed to the House demands must do so in the face of “these solemn considerations” (358). In other words, the House can be expected to prevail because its demand is just, reasonable, and constitutional.
Publius sees a ‘force’ attaching to popular majorities that renders it difficult for other branches to resist; not because they lack the constitutional authority, but rather, it seems, simply because they are standing athwart majority views. For instance, regarding the president’s power of veto he maintains “the superior weight and influence of the legislative body in a free government and the hazard of the executive in a trial of strength with that body afford a satisfactory security that the negative would be generally employed with great caution; and that there would oftener be room for a charge of timidity than of rashness in the exercise of it” (73:444). He writes in another place of the “momentum” which “the representatives of the people” possess in republican governments when they have, as they “commonly” do, “the people on their side”; a momentum which even “make[s] it very difficult for the other” branches “to maintain the balance of the Constitution” (71:433).
Nevertheless, it is also clear from the text, Publius wants the Senate and the president, as the case may be, to use their constitutional authority in cases where right and reason are not on the side of popular majorities. The question becomes, given the force and momentum of these popular majorities, how successful can the branches be in thwarting them? In considering this matter, it is instructive to return to the role he marks out for the Senate in protecting the people “against their own temporary errors and delusions.” On this score, he strongly suggests that its function will be that of delay which will allow, presumably through further deliberation, “reason, justice, and truth” to “regain their authority over the public mind. Likewise, when the president stands up to such majorities which have overcome both chambers, he is giving “them time and opportunity for more cool and sedate reflection.” In both instances, it is assumed that this delay will cause a change of heart. Moreover, off at the end, the decisive factor in determining how successful these institutions will be in performing this role will depend, he contends, on their standing in the eyes of the people. With regard to the Senate (and, no doubt, the presidency as well) he writes: “Against the force of the immediate representatives of the people nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves” (63:390).
In the last analysis, then, it is not the institutions which thwart majorities but rather the majorities’ basic sense of right, justice, reasonableness, as well as their respect for the involved institutions. The delay and deliberation, Publius seems to assume, will lead the majorities to restrain themselves. Yet this can only be if the majorities possess the moral and intellectual capacity to see the errors of ways. And this, in turn, bears out Publius’s famous observation at the end of Federalist 55: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form of government” (346).
Certainly our survey would indicate that Publius’s brand of republicanism also requires that these qualities be extensively shared: The people must possess the capacity to recognize virtue and to opt for it by electing “fit characters” ; the process of regulating the “various and interfering interests” requires that at least the disinterested of these “fit characters” will possess standards of right and justice; and, in the last analysis, the people also possess the capacity to re-examine the appropriateness and rightness of their positions and to act accordingly. A lack of sufficient virtue at any of these critical points causes severe, if not fatal, problems for Publius’s vision of republican government.
Reprinted with the gracious permission of the Political Science Reviewer, Vol. XIX, Spring, 1990.
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1. All parenthetical references to The Federalist in the text are to the North American Library Edition (1963) edited and with introduction by Clinton Rossiter. In these parenthetical citations the essay number, save where it is clear from the discussion in the text, will be followed by the page number. Hence, (27:176) is a reference to essay number 27, page 176.
2. In fact, as David Epstein points out, Publius’ s definition of republican government “is compatible with the plan of government that Alexander Hamilton proposed to the Constitution Convention”-a plan which provided that the indirectly-elected chief executive and Senators and the appointed judiciary should serve during “good behavior.” The Political Theory of “The Federalist” (Chicago: University of Chicago Press, 1984), 122.
3. In discussing the clause which provides the national government shall guarantee each state “a republican form of government,” Publius does not go very far in marking out the characteristics of republicanism. He does, however, specify that ” the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations” (43:274). Later in the essay he writes: “Whenever the States may choose to substitute other republican forms [from what they presently have], they have a right to do so and to claim the federal guaranty for the latter. The only restriction imposed on them is that they shall not exchange republican for anti-republican Constitutions ” (275).
Later, in Federalist 84, he is to say of this prohibition of titles of nobility: “This may truly be denominated the cornerstone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people” (512).
4. Though Publius believed that the electors would naturally turn to “proprietors of land … merchants, and members of the learned professions” to represent them, he goes on to remark: “There are strong minds in every walk of life that will rise superior to the disadvantages of situation and will command the tribute due their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all” (36:217).
5. Federalist 22 should be required reading for those who see a cousinly resemblance between Calhoun’ s concurrent majority system and Publius’s political thought. Moreover, this essay certainly is not couched in terms that would support the proposition, advanced by his critics since the turn of the century, that Publius looked upon the proposed Constitution with great favor because it would frustrate majorities. On this see below.
6. Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (3d ed.; New York and Evanston: Harper and Row, 1950), 269.
7. Schumpeter, 250.
8. See, for example, Robert A. Dahl’s widely acclaimed Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), and James McGregor Burns’s, The Deadlock of Democracy (Englewood Cliffs, New Jersey: Prentice-Hall, 1963) and Uncommon Sense (New York: Harper and Row, 1972). These critiques share the view that the Framers sought to frustrate the ‘goals’ of the Revolution. On this and other issues they also share the basic outlook of Smith, Parrington and other populist critics, though they tend to wrap their views in the language of modern pluralism. As Burns puts it, the system based on the Framers’ principles “has … exacted a fearful price. It has thwarted collective efforts to realize systematically and soon enough the goals implicit in our revolutionary tradition. It favors the groups – more affluent, knowledgeable groups – represented by the abler brokers. It discriminates cruelly against the unorganized or ill-represented masses of people,” Uncommon Sense, 117-18.
Since the early 1940s, at least, responsible and disciplined political parties have been viewed by ‘reformers’ as the chief vehicle for overcoming the difficulties and obstacles to the translation of majority preferences into law. See in this regard Elmer Schattschneider’ s Party Government (New York: Holt, Rinehart, and Winston, 1942). On the underlying assumptions and conceptions of the party reformists, such as Schattschneider, who embrace the key elements of the classical view of democracy see: Evron Kirkpatrick, “Toward a More Responsible Two-Party System: Political Science, Policy Science, or Pseudo-science?” American Political Science Review 65 (December 1971).
9. Vernon L. Parrington, The Colonial Mind: 1620-1900. Vol. I; Main Currents in American Thought (3 vols.; New York: Harcourt, Brace, and World, 1927), 290.
10. Publius suggests even more than this when he writes in Federalist 10 that “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” (82).
11. There is no reason, for example, to believe that Publius would have been at all surprised at Robert Dahl’s conclusions regarding what he called the “American Hybrid.” For instance, Dahl writes that “it is important to notice how little a national election tells us about the preferences of majorities. Strictly speaking, all an election reveals is the first preferences of some citizens among the candidates standing for office.” At another place he remarks: “If you examine carefully any policy decision, even a very important one, you will always discover, I believe, that only a quite tiny proportion of the electorate is actively bringing its influence to bear upon politicians.” For this reason, among others, he concludes, “we cannot correctly describe the actual operations of democratic societies in terms of the contrasts between majorities and minorities.” Preface, 131, 130, 131.
12. Dahl puts this process in the following terms: “If the majority rarely rules on matters of specific policy, nevertheless the specific policies selected by a process of ‘minority rule ‘ probably lie most of the time within the bounds of consensus set by the important values of the politically active members of the society, of whom the voters are a key group …. For most politicians subject to elections must operate within the limits set both by their own values, as indoctrinated [sic] members of society, and by their expectations about what politics they can adopt and still be reelected.” Preface, 132.
We cannot help but note in this connection that Publius, as we might expect, stresses the communion that exists between the representatives and their constituents. “Duty, gratitude, interest, ambition itself,” he writes, “are the cords by which they [the representatives] will be bound to fidelity and sympathy with the great mass of the people” (57:353). In this respect, he notes the very special role of elections in securing this communion: “without the restraint of frequent elections,” the representative would not feel “compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it” (57:352).
13. Publius recognized that it would be impossible to specify with exactness the precise domains of each of the branches. “Experience has instructed us,” he writes, “that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces-the legislative, executive, and judiciary” (37:228). Nevertheless, as his treatment of the separation of powers clearly indicates, this did not mean that there was not a general understanding of what constituted the core or basic elements of these three departments.
14. In Federalist 9, he provides virtually the same picture of this division of authority. “The proposed Constitution,” he maintains, “so far from implying an abolition of the State governments, makes them constituent part of the national sovereignty, by allowing them a direct representation in the Senates, and leaves in their possession certain exclusive and very important portions of sovereign power” (76).
15. It is far from our purpose here to explore this particular area. It should be noted, however, that Publius is not entirely unambiguous about how disputes between the national and state governments should be resolved. In Federalist 39, he writes of a “tribunal” which “is to be established under the general government” as the ultimate arbiter (39:245). This can be taken to mean the Supreme Court. However, at other places he speaks of the “common constituents” drawing the lines between the two jurisdictions. The clearest statement to this effect comes at the beginning of Federalist 46 where he maintains that the “ultimate authority” for the resolution of disputes between the two jurisdictions “resides in the people alone.” “Truth, no less than decency,” he adds, “requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents” (46:294). (See also: 44:286; 33:203; 28:181).
Publius suggests a different process of resolution in Federalist 46 where he notes that the states have it within their power to frustrate the measures of the federal government which are either unpopular or unwarranted. “The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasion, would oppose, in any State,” he contends, “difficulties not to be despised; would form in a very large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter” (46:297-98). As a consequence, we may assume, Publius felt that Congress would continually have to take into consideration the reception of its policies within the states in deciding whether or not to push ahead with them. This, again, suggests that Congress, as opposed to popular majorities or the common constituents, is in a far better position to judge of the opposition that will be encountered. It is also to suggest that Congress would be inclined to desist in pressing measures, even those backed by popular majorities, which would engender opposition because to do so might prove to be too costly or even counter-productive.
16. In an important sense, The Federalist is a pathology of republicanism. One of the reasons, we surmise, why Publius is often interpreted as hostile to republican government is that he frankly acknowledges its shortcomings and the potential dangers associated with it. Yet, that he was a friend of republicanism and self-government is attested to by this frankness and his efforts to show how the proper operations of the proposed Constitution would overcome these weaknesses and dangers.
17. Testimony to Publius’s belief in the republican character of the system is to be found in the fact that he dismisses the possibility of rule by factious majorities in just two sentences, one of which we have had occasion to allude to. “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution” (10:80).
18. Publius is to argue that the conditions of the extended republic, principally the multiplicity and diversity of interest, will provide the remedy for majority factions on the terms he sets forth. But to this solution, Robert Dahl writes: ” Whether or not the majority is factional is irrelevant to the operation of the restrictions imposed by the existence of a numerous, extended, and diverse electorate. Furthermore, so far as I am aware, no modern Madison has shown that the restraints on the effectiveness of majorities imposed by the facts of a pluralistic society operate only to curtail ‘bad’ majorities and not ’good’ majorities; and I confess I see no way by which such an ingenious proposition could be satisfactorily established.” Preface, 29-30. For an extended discussion and analysis of Dahl’s contention in this regard see: Gary Wills, Explaining America: The Federalist (New York: Doubleday and Co., 1981), chapters 23-31. See our discussion below.
19. Douglas Adair points out Federalist 10 assumed its position as the most widely read and analyzed of all the essays after the publication of Beard ‘s An Economic Interpretation of the Constitution of the United States in 1913. “That Politics May Be Reduced to a Science: David Hume, James Madison, and the Tenth Federalist, ” in Trevor Colburn, ed., Fame and the Founding Fathers (New York: W.W. Norton, 1974).
20. Martin Diamond was among the first to stress this point. Of the “strategy” behind the extended republic theory, he writes: “if Americans can be made to divide themselves according to their narrow and particularized economic interests, they will avoid the fatal factionalism that opinion and passion generate. By contrast, the relatively tranquil kind of factionalism resulting from economic interests makes possible a stable and decent democracy.” “Ethics and Politics: The American Way, ” in Robert H. Horwitz, ed., The Moral Foundations of the American Republic (2d. ed.; Charlottesville, Virginia: University Press of Virginia, 1979), 54.
Diamond writes as if Publius (Madison) sought to channel or direct political activity into the realm of interest conflict. This does not seem warranted. Publius seems to take the predominance of interest conflict as a given when he writes that it is the “principal task of modern legislation.”
21. Quite pertinent here are Publius’s remarks in Federalist 36 in the context of pointing out the impracticality of representing all interests in the legislature. Here he observes: “What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking-weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between and of the departments of labor and industry” (218).
22. Publius has recourse to this view in answering those who argue that the states would, if allowed to go their separate ways, as independent “commercial republics … never be disposed to waste themselves in ruinous contentions with each other.” He asks rhetorically: “Has it not … invariably been found that momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice?” (6:56)
For an excellent discussion of Publius’s views and “theories” of human motivation see James B. Scanlan, “The Federalist’ and Human Nature,” The Review of Politics 21 (October, 1959).
23. Publius recognizes the novelty of his teachings in this regard. In Federalist 14, he turns this fact to his advantage: “Harken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that is has never yet had a place in the theories of the wildest projectors; that it rashly attempts what is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys … the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rending us to pieces in order to preserve our liberties and promote our happiness.” He goes on to ask rhetorically: “But why is the experiment of an extended republic to be rejected merely because it may comprise what is new? Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience” (104).
24. Aside from bribery which would be more difficult and expensive in a large district, it is not unlikely that Publius felt that larger districts would compel the candidates to confront different audiences under a variety of circumstances which would serve to ‘filter out’ the weaker candidates. Certainly in the small districts, the defects of pure democracy could come into play in the selection of representatives; not the least of these being momentary passions dictating the choice of a representative.
25. Why Publius should cite this and not other obvious impediments such as communication, geographical considerations, and the like, is an interesting question. Interest-based factions as he depicts them, for example, would certainly seem to lack a “consciousness” that would operate as an impediment in the fashion he describes. He has told us above that moral and religious motives will not deter passion – or interest-based majorities from pursuing their factious ends if given the opportunity. We must assume, it seems, that there is a category of “unjust and dishonorable” ends that are acknowledged and accepted as such by the general population. His remarks in Federalist 55 indicate that within this general category would fit “a scheme of tyranny or treachery” carried out by representatives who are supported by the people. What is more, he writes, “I am … unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them” (344).
26. These at least are the values with which he was concerned in his more philosophical reflections in Federalist 37. Here he writes that “combining the requisite stability and energy in government with the inviolable attention due to liberty and to the republic form” must have been one of the more important “difficulties encountered by the Convention” (226).
27. Decision making, that is, on specific issues or policies. The people, of course, make a critical decision in electing their representatives.
28. Publius repeats essentially this same message towards the end of Federalist 59. At this point he warns, “The more multitudinous a representative assembly maybe rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.” But he adds another consideration: “the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on character of this description that the eloquence and address of the few are known to act with all their force” (360).
Of some interest in this regard are Publius’s remarks on the upward limit of a legislative assembly. “At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred; and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body” (55:343).
29. Publius here is taking exception with Jefferson’s proposal for maintaining separation between branches, and he is sensitive to the fact that this proposal, consistent with republicanism, calls upon the people to settle disputes between the branches over their relative domains. “It seems strictly consonant to the republican theory,” he writes, “to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.” While he acknowledges that there is “great force” in “reasoning” that the “people themselves … as the grantors of the commission, can alone declare its true meaning,” he draws back from endorsing it fully. In his judgment, it “must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions” (49:314).
30. Still another serious objection is that “every appeal to the people would carry an implication of some defect in the government” which might well serve to deprive the government of that veneration … without which perhaps the wisest and freest governments would not possess the requisite stability,” and that such appeals would disturb “the public tranquility” by raising constitutional questions which is a “ticklish” business at best (49:314-15).
31. Actually Publius could see no way around this particular problem. In the last paragraph of Federalist 50, an essay in which he considers whether periodic, rather than occasional, appeals to the people would suffice to maintain the separation, he writes that trying to exclude from such conventions those who have interest in the outcome would be futile. Beside which, he adds, to the extent those directly involved in the controversy are excluded, “the important task [of the convention] would probably devolve on men … with inferior capacities” (320).
What is also interesting to note is Plubius’s remark, consonant with his position in Federalist 10, that not only should we expect party passions to surround such determinations, we should not have it otherwise: “an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty” (320).
32. As Gary Wills asks: “Madison … say[s] that we cannot count on enlightened statesmen invariably being present to ‘adjust . . . clashing interests.’ But how can he say this and then propose, two pages later, his plan 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”?
Wills answers by arguing that the passage concerning enlightened statesmen “is part of the preliminary discussion of factions’s evil, before proposals are considered for its cure. Madison obviously means that `enlightened statesmen; will not be on hand by mere accident. Measures must be taken to distill virtue and purge interest; to create a judicial aspect to the legislature by sending uninstructed delegates, for an extended territory, through successive processes of choice, thus making it harder for interest to invade the national councils, to mobilize itself brazenly on a large scale, to confess its ex parte nature among men who have been sworn to impartiality.” Explaining, 259.
Wills’s answer is ‘different from that which we offer (see below). Suffice it here to point out that Publius certainly did not anticipate the representatives – either members of the House or the more `refined’ Senators – acting anything like enlightened statesmen when it came to expanding legislative powers at the expense of the other branches. Put otherwise, Publius did not see the representatives above pursuing their shared and immediate institutional interests at the expense liberty, stability, and constitutionalism. And this alone should make us wonder just how “enlightened” Publius thought they would or, for that matter, could be.
33. A point which he makes clear at various places. In speaking to the necessity of the Senate, for example, he remarks on the “propensity of all single and numerous assemblies to be seduced by factious leaders to intemperate and pernicious resolutions” (62:379). Thus, he felt, the sources of factious action can reside within the legislature itself. In Federalists 63 and 71, in speaking to the need for a second chamber and executive veto, he acknowledges the power of popular, factious majorities to work their will upon the representatives. In sum, Publius operates on the assumption that representatives will act on behalf of interests to which they are attached and that they are not above succumbing to those passions which might sweep over a popular majority. The condition of the extended republic, for reasons we point in the text, does not eliminate this kind of behavior. What it does do is to minimize it both by inhibiting the formation of majority factions and by `localizing’ the conflict in the legislature so that only a portion of the representatives is responsive to the interests involved in any particular dispute.
34. It is interesting to note that when treating of the potential benefits of representation in the large republic Publius speaks of the representatives acting in their collective capacity. “The public views,” for instance, are “refine[ed]” and enlarge[d] by passing them through the medium of a chosen body of citizens.” And he maintains that it is the “public voice, pronounced by the representatives of the people” which might be more consonant “to the public good than if pronounced by the people themselves, convened for the purpose” (10:82).
Put this way, Publius is not ruling out the effect that interest or passion might have on individual representatives. Moreover, in these terms, there is certainly sufficient latitude and room for the process we have described; processes which promise the same benefits which Publius identifies.
35. Given the “bonds” between the representatives and their constituents, we have every reason to believe that the mediating representatives would operate well with the realm of the basic and consensual values, assumptions, and outlooks of their constituents. In this`indirect’ sense the majority can be said to `rule.’
36. In this connection, the problem is not one of majority factions, but rather majorities internal to the legislative chamber. In any event, the issue involved is of such a nature as to preclude reliance on the same processes which curb majority factions.
37. In light of our analysis above, the phrase “known and determined sense of a majority” is significant. In this case, Publius envisions that a majority of the people will be ‘pressuring’ the Congress.
38. Later in this essay, Publius is to offer other reasons why the House would prevail in any “trial of firmness” with the Senate. The “power of the purse” he considers to be decisive, though this is, on his own showing, a rather unwieldy `weapon.’ He remarks that those “who reflect” will have “no difficulty” in perceiving “that in all cases the smaller the number, and the more permanent and conspicuous the station of men in power, the stronger must be the interest which they will individually feel in what concerns the government. Those who represent the dignity of their country in the eyes of other nations will be particularly sensible to every prospect of public danger, or of a dishonorable stagnation in public affairs” (58:359).
39. This is not to say that the House would not pose an obstacle to factious majorities. In some ways it can be looked upon as the initial and most powerful obstacle to these majorities. Certainly once the House has caved in, the prospects of thwarting such majorities diminishes considerably.
On this point it should be remarked that the courts’ role in thwarting majorities is, as we read Federalist 78, confined to declaring unconstitutional measures null and void. According to Publius’s constitutional morality, clearly the Senate and the president may use their constitutional authority to block factious measures, as well as those which they may consider to be ill-conceived. But not all factious or ill-conceived legislation is unconstitutional. Thus, the courts’ role in controlling majorities is far more limited than that of the president or Senate.
40. Of interest in this respect are Publius’s remarks towards the end of Federalist 51 where he uses a parallel to the “state of nature” to indicate why majorities might restrain themselves. Just as ” 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; so:.. will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful” (51:324-25). Here he seems to postulate that the stronger interests will take into consideration their long term, as opposed to, short term interests. Certainly this is more likely given a government which has a proven ‘record’ for justness and firmness.
41. Without exploring this matter at length, it would seem that the delay and deliberation would be most effective with regard to passion-based factions. Delay would allow the passions to cool. But whether delay and deliberation would cause interest factions to cease and desist in problematical. For one thing, on the basis of what Publius does write in regard to such factions, we should hardly expect delay to make much difference if impulse and opportunity coincide. Moreover, these factions are of a cold and calculating nature, less prone to be affected by delay.
These observations, if valid, would seem to call for a refinement of the commonly held views about the intractability of passion factions. Publius, for instance, may have felt that delay would alter the behavior of majorities formed around “shallow,” as opposed to “deep” passions.