How to Revive Madison’s Constitution
“The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society,” James Madison wrote in “Federalist No. 57,” “and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
Recognizing that men are not angels, Madison identified “numerous and various” structural mechanisms in the Constitution for preventing the “degeneracy” of representatives after their election, to discourage them from pandering to partisan factions rather than serving the common good. “The most effectual one is such a limitation in the terms of appointments as will maintain a proper responsibility to the people,” he wrote.
In fact, the entire Constitution was established to prevent the selection of demagogues who would flatter factions, or partisan mobs, and rule by passion rather than reason. It contains a series of obstacles to prevent hasty decisions based on mob rule and to promote deliberation on the public good. These included: the selection processes originally designed for senators (chosen by state legislators) and the president (chosen by a deliberative Electoral College); the division of power between the federal and state governments and among the three branches of the federal government, each of which would vigorously defend its own prerogatives; and the hope that factions would check one another in Congress to prevent any one from dominating.
As Madison emphasized at the Virginia ratifying convention, however, the most effective guardian of a republican government devoted to the public good was not an expectation of virtuous representatives but the cultivation of virtuous people, committed to governing themselves and to choosing representatives based on reason rather than passion. “I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom,” Madison declared. “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”
This week, as Congress conducts an impeachment proceeding against the president that seems likely to culminate in House and Senate votes along entirely partisan lines, it may feel obvious that Madison’s hopes for virtuous, public-spirited representatives accountable to a virtuous, public-spirited people were optimistic. A new series of essays, commissioned by the National Constitution Center and released today, convenes eight of the nation’s leading historians and constitutional scholars from diverse perspectives to ask: What would Madison think of the country’s current presidency, Congress, courts, and media? How and why have these institutions changed since the nation’s founding to undermine Madisonian ideals? And what can the country do to resurrect those ideals in this polarized digital age?
In these essays, one common theme was the effects that the rise and entrenchment of political parties have had on Madison’s system. Madison understood that political parties could themselves be dominated by factions. “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” he wrote in “Federalist No. 10.”
But Madison’s expectation that the parties could keep themselves in check and nominate candidates who would serve the broader public good was largely borne out over the first several decades of the republic. In the 1820s and ’30s, the first political parties actually helped constrain and temper impassioned or extreme impulses among the electorate. As the Princeton historian Sean Wilentz has noted, the most serious movements for constitutional and social change in the 19th century—from the abolition of slavery to the Progressive movement—were the products of strong and diverse political parties. These movements did not come to fruition without significant outbreaks of violence and mayhem, but the political parties attempted to defuse such violence and channel it into constructive constitutional and political dialogue.
Whatever moderating effects political parties had in the aftermath of the Civil War were short-lived. In the 20th century, those effects were ameliorated through a series of populist reforms, including the direct election of senators (enshrined by the Seventeenth Amendment), the populist-ballot initiative, and direct primaries in presidential elections, which became widespread in the 1970s. More recently, geographic and political self-sorting have produced factions of voters who select representatives who are willing to support the party line at all costs. Parties, in short, have expanded their control over who is chosen for the highest federal offices and how they govern.
As of today, electoral primaries are designed to choose candidates most devoted not to the cool voice of reason and the common good but to the passionate interests of the most mobilized factions. General elections appear to offer no more than a choice between the representatives of two extreme factions, not necessarily a representative cross-section of the citizenry. Once in office, presidents find themselves almost immediately pressured to focus on their re-elections, which means pleasing the mobilized factions who put them into office. As a result, presidents feel pressure to choose as their closest advisers or cabinet heads not the people who are most qualified or disposed to be concerned with the public good, but rather with keeping particular factions within the governing party happy.
For House members, direct election every two years intensifies their attachment to party or to the factions they must appease to be re-nominated by their parties and to stay in office. In one of his last public appearances, the late Justice Antonin Scalia suggested that the Seventeenth Amendment had transformed the Senate by altering the means for its election from state legislatures to direct election in their respective states. This transformation made senators more amenable to appeasing well-financed factions to ensure their continued nomination and election.
Perhaps as a result, the general elections for Senate, like those for the presidency and the House, now give voters a choice between the representatives of two increasingly polarized factions. Once in office, House members and senators need party support more than ever to maintain their committee assignments and mount successful re-election campaigns. That’s one reason members of Congress have been increasingly disposed to conflate their own interests with those of their parties rather than serving the public good. Over the last few decades, this disposition is clearly reflected in the sharp increases in voting in Congress strictly along party lines. For instance, the defining congressional achievements of Barack Obama’s presidency and, thus far, Donald Trump’s presidency—the Affordable Care Act of 2010 and the Tax Cuts and Job Acts of 2017, respectively—were each passed with no votes from members of the minority party.
The rise in rigid partisanship has not been unique to the Congress. For example, the Electoral College, once thought to be a filter that allowed electors to make wise choices about who should become president, has largely failed in that mission as it fell under the control of the increasingly dominant political parties. Since the early 20th century, presidents have moved in precisely the direction that Madison and the other Framers had hoped to avoid: They bypass Congress and the media to make emotional appeals directly to the American people. Once in office, presidents, at least since Theodore Roosevelt and Woodrow Wilson, have insisted that their authority derives directly from the people. Theodore Roosevelt referred to his office as “a bully pulpit,” by which he meant a unique platform for advocating for his agenda directly to the American people. He further argued that the president functioned uniquely as a “steward” doing whatever he could for the American people and limited only by his popular support rather than any of the textual constraints set forth in Article II of the Constitution.
Both the constitutional structure and the increasingly sharp partisan divide among the members of Congress and the American electorate have helped to make the presidency ever more powerful. Though the Framers largely expected the executive and legislative branches to be on equal footing in the lawmaking process (or, at least, in the three areas in which the Senate has unilateral judgment), it has not worked out that way. Over time, the president, not Congress, has gained the upper hand. If for whatever reason Congress is unable to legislate on a matter, its inactivity leaves a void that a president can, and frequently does, move quickly to fill, achieving by executive fiat what he is unable to accomplish by legislation. Once the president has made his move by issuing an executive order or vetoing a bill, then Congress is highly unlikely to override what he has done. Although President Barack Obama vetoed congressional enactments twenty times, Congress overrode only one of those vetoes. Thus, even if Congress can act first on a matter, there is no guarantee that the will of Congress, as opposed to that of the president, will prevail.
The expanded power of political parties over the choices and activities of the leaders of the three branches has coincided with the erosion of other safeguards that Madison and other Framers had designed to create some distance between national leaders and popular majorities. One of the most important of these mechanisms is separation of powers. In “Federalist No. 47,” Madison contended that the accumulation of legislative, executive, and judicial powers in the hands of one body or person would be “the very definition of tyranny.” In “Federalist No. 51,” he explained that “ambition must be made to counteract ambition” by “giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments from the others.”
He counterbalanced his worry about the potential aggregation of powers with the observation that the practicalities of governance dictate that the legislative, executive, and judicial powers are not entirely separated, but rather blended. The separation of powers is not absolute, but “where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” Madison was largely concerned with the ability of each branch of government to check encroachments on its own powers by the others. Fears of a possible breakdown in separation of powers might arise when a single faction controlled all three branches.
Today, political partisanship amplified by modern media technology presents yet another threat to Madison’s system. In Madison’s day, there were partisan newspapers rallying their respective bases and spreading opposition to the leaders and policies they did not like. In the age of Fox, CNN and Twitter by contrast, there are far more outlets with national audiences that feed political prejudices on a broad geographic scale. Madison hoped that political passions would cool, given the extended size of the American republic—by the time they discovered each other, mob-like factions would fizzle out and go home. On social media, however, like-minded partisans from coast to coast discover each other immediately and form Twitter mobs relentlessly. This undermines the advantages of geography that Madison hoped would allow reason to prevail.
There are at least three kinds of solutions to the problems the Madisonian Constitution faces today. The first is to fix the extent to which websites and social media platforms have undermined public deliberation and discourse. But doing so runs into two challenges. The first is that the platforms themselves are private entities and, therefore, the solutions for improving what they do with respect to how they regulate content online must come from them, and not from the state. The second complication—or salvation, depending on your point of view—is, of course, the First Amendment, which forbids the government from censoring hate speech or attempting to micro-manage the deliberations and discussions across the web. And the platforms have their own First Amendment rights to assert.
A second solution to the breaking down of the Madisonian Constitution may be found in one of the Constitution’s most important safeguards against the tyranny of the mob—the concept of federalism, or the relationship between the federal government and the states. Madison conceived of federalism as a significant bulwark against out-of-control popular majorities by enabling the federal government and the states to check each other. Justice Louis D. Brandeis famously described the states as “laboratories of democracy,” which are tinkering with—and frequently fighting over—providing easier (or more restrictive) access to voting, expanding (or opposing) nonpartisan primaries, pushing for (or opposing) greater transparency in campaign donations, and providing (or opposing) public funding of some campaigns.
The third and most promising way to protect the fundamental ideals and objectives of the Madisonian Constitution is through constitutional education. The Framers believed that the fate of the republic depended on educating the citizenry. President George Washington urged Congress to create a national university in 1796. He declared, “A primary object of such a national institution should be the education of our youth in the science of government.” Drawing on his studies of ancient republics, which taught that broadly educating the citizenry was the best safeguard against “crafty and dangerous encroachments on the public liberty,” Madison favored having the rich subsidize education of the poor. He believed it was indispensable for combating factions. In defense of the Kentucky legislature’s “Plan of Education embracing every Class of Citizens,” Madison wrote in 1822, “A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” Subsequently, John Quincy Adams, Henry Clay and Abraham Lincoln were among those who defended the broadening and deepening of public education at both the federal and local levels.
The success of the Madisonian Constitution, in the end, will depend on the whole people’s commitment to the enterprise of making government work on behalf of the public good. That commitment requires citizens to rise to the challenges of educating themselves about history, the Constitution, and the most pressing issues of the day. Madison was a partisan, but before that, he was a Founder, and before that, he was a student of constitutional history. Madison may not have been perfect in fulfilling the ambitions he set for himself, the country, and the Constitution. But his ambitions remain the inspiration and model for all Americans to follow in ensuring that the Constitution that Madison helped to create is more than what he called a “parchment barrier” against threats to liberty and public reason. Rather, it must be a code to live by and to inspire future generations to learn about as Americans strive together to cultivate our faculties of reason and “to form a more perfect Union.”
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
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MICHAEL GERHARDT is Scholar-in-Residence at the National Constitution Center and Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law. He is the author of Impeachment: What Everyone Needs to Know.
JEFFREY ROSEN is a contributing writer for The Atlantic, President & CEO of the National Constitution Center, and a law professor at George Washington University. He is the author of Conversations With RBG: Justice Ruth Bader Ginsburg on Life, Love, Liberty, and Law.
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