GOVT 2301

GOVT 2301

Federalist #10 and the Republicanism

In the previous section we looked over the nature of Constitutions

and analyzed the broad design of the United States and Texas Constitutions, as well as the

alleged failures of the Articles of Confederation.

This week we begin a series of lectures designed to dig deeper

into specific design features within each document.

We will look separately at these four:

RepublicanismSeparated PowersIndividual Liberty

Federalism

This week: Republicanism

In other words: Indirect Democracy

orRepresentative Democracy

For a reminder: What is a Republic Again?

A republic is a type of government where the citizens choose the

leaders of their country and the people (or at least a part of its people) have an impact on its

government. -Wikipedia

More specifically, it means that the preferences of the general

population are filtered through representative institutions.

People do not rule directly, as in the Athenian democracy, rather

they do so though elected representatives.

Read Pericles on Athenian Democracy here.

We will consider this topic also by reading through Federalist #10

which argues that the Constitution will successfully limit the dangers posed by factions motivated by

personal, narrow interests, not the overall interests of the nation.

Please note that I expect you read through Federalist #10 and be

prepared to answer a handful of questions regarding its text.

A faction, as the term was used by Madison, is similar to what we would

call today interest (or advocacy) groups.

As we will see, the Constitution is designed in part to impact how groups

form in the nation and how capable those groups are to creating instability.

Consequently, this allows us to take an early look at interest

groups, what they are, how they form, and how they are – or are

not – effective.

At root, this section concerns a conflict that exists between the

concept of popular sovereignty and democracy.

While we know from our discussion of natural rights that a

government must rest on the people, history tells us that the people can provide an unstable

basis for government.

Classical authors argued that democracies inevitably turned

chaotic and out the chaos emerged a tyranny that would keep the

peace. Read criticism of the Athenian democracy here.

The Framers of the Constitution were aware of these arguments.

They were also aware that being wealthy property owners, they

were in a minority.

A democratic majority could take their property, which they saw as a

violation of their unalienable rights.

Recall the tension between majority rule and minority rights.

In a democracy the nature of minority rights can be defined by

the majority.

The democratic system was believed to be the reason Greece

was defeated in the Peloponnesian War.

A democratic assembly was also responsible for the

execution of Socrates.

The real problem, as they saw it, lied in human nature.

As we will see later, Madison thought we far more likely to “vex and oppress” each other than to

cooperate. This would be fatal in a direct democracy, but manageable

in an indirect democracy.

A tyrannical system can suppress divisions in society because they

are powerful and ruthless enough to eradicate them.

Stalin dealt with opposition groups by killing them.

That’s one way to solve the problem.

Democracies, which naturally require a degree of individual

freedom, allow these divisions to take center stage and lead to

conflict. Utter chaos – civil wars – can lead some to conclude that a tyrannical leader is preferable to

random violence.

This was Thomas Hobbes conclusion in The Leviathan,

written during the British Civil Wars.

Democracy can lead to tyranny.

The word “democracy” therefore wasn’t a compliment.

Think about how people use the term “socialism” today.

The goal of the U.S. Constitution is to maintain popular rule; to ensure

that it did not crumble into tyranny.

The question was how.

Madison would argue that the answer to these problems was in

designing a “well-constructed union.”

This would involve creating a republic with strong independent

but accountable legislative institutions that rest between the

people and the law.

So while it is true that the U.S. is a democracy, the democratic design is such that the electorate has a no capacity to instantaneously change

policy.

While the Preamble begins with “We the People,” much of the

remainder of the U.S. Constitution protects government from the

people.

That is what a republic does.

Before we continue, let’s recall what “democracy” means.

It means, in Greek, rule of the people, and as is practiced today has three main components. We

introduced these previously.

1 - Universal Adult Suffrage

2 - Majority Rule

3 - Minority Rights

Obviously we can question whether the U.S. qualified as a democracy at

that point given restrictions on suffrage.

We discuss these in the section on elections. For now it is important to know that restricted suffrage was a deliberate choice by the framers.

The framers of the Constitution were worried about the

excesses of democracy, and sought instead to limit the direct impact of the population, while still retaining the basic democratic framework.

“The evils we experience flow from the excess of democracy.” –

Elbridge Gerry

He was referring to the problems the nations was allegedly suffering

from under the Articles of Confederation.

From the Constitutional Convention:

Mr. HAMILTON. This question has already been considered in several points of view.

We are now forming a republican government. Real liberty is neither found

in despotism nor the extremes of democracy, but in moderate governments.

The people who attended the Constitutional Convention believed that the policies proposed by the

democratic legislatures in the states were harmful to the future

stability of the union.

The legislatures were, for example, debasing currency to allow for easier payments of debt even

though this policy, in their opinion, harmed long term economic

development.

James Madison would argue against these specifically.

Paper MoneyThe Abolition of Debts

Redistribution of Property

They were especially concerned about the tendency of

democracies to be unstable.

This was one of the lessons of history.

As a result, the participant of the constitutional convention created a

republic, not a pure democracy.

Indirect not Direct

In a republic, a variety of institutions lay between the

population and the formulation, implementation and adjudication

of the law.

On the national level this includes:

A Bicameral CongressA Singular Executive

An Appointed Judiciary

These are established in the first three articles of the U.S.

Constitution

Each institution is put in office through a separate process, which

insulates them in different ways from the national electorate

House – the peopleSenate – the states

President – the electoral collegeCourts - appointment

And each institution has a different term length, which also insulates it

from the national electorate:

House – 2 yearsSenate – 6 years

President – 4 yearsCourts - Lifetime

The longer the term, the greater the insulation.

Or think about the length of a dog’s leash.

The fact that only one third of the Senate is up for election every two years shields that institution from

ever being subject to the immediate preferences of the

electorate.

The fact that the federal courts serve for life, in addition to being appointed, means that they never

face the electorate.

Texas has a similar structure, though the institutions are more

closely tied to the Texas electorate

All institutions are elected, meaning that they are all subject

to the preferences of the majority.

Question: does this makes tyranny of the majority more likely at the state level than the national? We

will explore this later.

Terms lengths tend to be shorter in Texas than in the US

Texas House – 2 yearsTexas Senate – 4 years

Texas Governor – 4 yearsTexas Judiciary – 6 years

Only one half of the Texas Senate is up for reelection every two years.

The Texas Judiciary is elected, not appointed, but serves staggered six

year terms.

As a consequence, the people do not rule, rather they elect

representatives to rule for them and then have the periodic

opportunity to replace or retain them.

This raises a question about what “popular sovereignty” actually means. Are the people always

sovereign, or is their sovereignty limited to the decisions they make

in periodic elections?

Again, while the people are indeed sovereign, the range of their power is limited. As we will see when we

read through Fed #10, the Constitutional system is designed

to convert all interest into minority interests.

This checks the power of the majority power.

Think of republicanism as a check on the power of the people.

Again, we explore this issue by reading through one of the more

influential of the Federalist Papers

Federalist #10

The Utility of the Union as a Safeguard Against Domestic

Faction and Insurrection

- written by James Madison

- wikipedia.

The Text of Fed #10Wikipedia: Fed #10

James Madison wrote Fed 10 and argued that the “well constructed union” created in the Philadelphia

Convention would prevent the United States from falling prey to

one of the consequences of democratic government.

Democracies, historically, have been unstable, violent, and short

lived. Majorities are able to oppress minorities. Policy can shift radically based on shifts in popular

sentiment.

Although people must be free to participate politically, the general

public must be unable to destabilize government. Majorities must be unable to undermine the

rights of the minority.

How can this be best done?

Why does Madison care?

The wealthy are a minority and in a democracy their property may be subject to redistribution and the

money owed them might be subject to being forgiven.

A similar sentiment would be expressed by the Danbury, Connecticut Baptist

Association in 1801 in a letter to Jefferson.

They were concerned that the laws of Connecticut at the time placed them, as a

minority, in a position where their religious liberty would be determined by the

majority.

“what religious privileges we enjoy (as a minor part of the state) we

enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of

freemen.”

They wondered if Jefferson believed that their freedom to

worship as they choose would be protected. Jefferson responded in his letter stating he believed that the First Amendment created a “

wall of separation” between church and state.

Here is a basic outline of the argument in Federalist #10.

It should not substitute a full reading of the document itself.

He begins with a statement of the problem:

Factions have always destroyed democracies. Groups form with interest opposed to others or to

the overall interests of the people.

“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.” - Madison

Think of factions as interest groups, what we would call today,

special interests.

Factions can be dealt with by focusing on causes or effects

By focusing on the causes we can prevent factions from developing.

By focusing on the effects we allow factions to form but ensure that they cannot do damage to the

republic.

There are two principle causes of factions:

FreedomDiversity

Freedom allows people the right to form into groups and participate

politically

Diversity refers to fact that people are different in their ability to

process information and in the nature of their interests.

But the elimination of freedom is worse than the disease.

Freedom is essential.

The right to form factions would later be made clear in the First

Amendment.

Congress shall make no law …. Abridging the right of the people to

peacefully assemble and petition government for a redress of

grievances.

Diversity is inevitable in a free society.

It is impossible to make people the same. We are naturally diverse. It

is in our nature to form into groups based on our self interest and

come into conflict with others with opposing interests.

1 - People reason in different, often incorrect ways and tend to grow

attached to their ideas.

2 – Various interests evolve in a civilized society and groups evolve

around those interests

Plus:

It is in our nature to “vex and oppress each other” and not to

cooperate for the common good.

We are self-interested by nature.

The conclusion:

The causes of faction cannot be removed. Their impact can only be

addressed by focusing on their effects.

This is a crucial point. Human nature is written into the

constitutional order. It is accepted and compensated for. We will see this again when we read through

Federalist #51 and discuss ambition.

So here is the question: How can factions be allowed to exist, but

not allowed to undermine stability? By focusing on their

effects, not causes.

How can freedom not undermine stability?

“To secure the public good and private rights against the danger of

such a 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.”

He begins to address this question by pointing out that there are two

types of factions:

MinorityMajority

The minority faction (which is les than 50% of the population) can be

checked, in a democracy, by the majority which can defeat them by

vote.

“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.”

The minority can pose problems for society, but it cannot become

tyrannical.

Bu the majority faction can become tyrannical. It can dominate

elections and use government offices to abuse minorities.

“When a majority is included in a faction, the form of popular

Government, on the other hand, enables it to sacrifice to its ruling

passion or interest both the public good and the rights of other

citizens.”

So that’s the danger – the majority.

He focuses the bulk of his attention on this.

Tyranny of the Majority

A democracy can become tyrannical. I have repeated this

point and will continue to do so.

His principle insight: In order for the majority to successfully act

against the minority, it has to have:

Impulse and Opportunity

Impulse: A common feeling to act against an unpopular group.

Opportunity: The means to act on that feeling.

If they intersect – the majority can do anything.

Madison argues that impulse and opportunity coincide in a direct

democracy where people can meet in person, make quick decisions

and implement them immediately.

Think about the Salem Witch Trials or lynchings.

“If the impulse and the opportunity be suffered to

coincide, we well know that neither moral nor religious motives

can be relied on as an adequate control.”

Passion will translate immediately into legislation, and will be implemented immediately.

This is why democracies are dangerous. They can be subject to

the preferences of violent, passionate majorities.

Pure democracies can admit of no cure for the mischiefs of faction

since there is no barrier between the individual and the law.

A republic – an indirect democracy - can provide the solution to this problem. A country can be both based on individual liberty and sovereignty and be resistant to

tyranny of the majority and instability.

There are two ways republics can cure the violence of faction.

First – because representatives, not the people, will make

decisions. They will less likely to be motivated by pure passion –

though this is not always the case – as he admits.

“Enlightened statesmen will not always be at the helm.”

The representative system will slow the process down so that

passionate feelings will not immediately influence policy.

The fact that the public can only directly impact the government in periodic elections minimizes the

opportunity for passionate majorities to dominate

policymaking.

They can only have that influence at the appointed time.

Second – because a representative government is more likely to

contain multiple interests, making it less likely that a single

permanent majority can be formed. The majority is likely to be

split.

The existence of multiple interests makes it less likely that one, or a

small handful of interests will allow for the formation of a majority –

especially one that can be sustained.

A large country will contain many interests.

The House of Representatives, for example, contains 435 members elected from 435 distinct districts

around the country.

The various points of view held across the country will be heard in

the House.

Madison argues that the smaller the republic, the more dangerous it can be because there will be a

smaller number of interests contained within it. This makes the formation of a majority more likely.

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the

whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be

more difficult for all who feel it to discover their own strength, and to act in unison

with each other.”

Local governments are more likely to be tyrannical than state

governments and state governments are more likely to be

tyrannical than the national governments.

Note: Since the Texas Constitution is far more democratic in its design and smaller in scale than the U.S.,

it may be more prone to tyranny of the majority.

Madison’s point was that states were becoming tyrannical. The

ability of the minority – land owners – to preserve their rights – property – was being jeopardized.

He noted in the states at that time: “A rage for paper money, for an abolition of debts, [and] for an equal division of property.” A national government could suppress those tendencies.

Madison's Ironic Conclusion: A Republican Solution to a

Republican Problem.

The answer to the problem of factions – interest groups – is to

make more of them.

Everyone is a minority, no one group can dominate.

A minority cannot tyrannize the majority in a democracy.

Certain institutions can preserve the benefits of a minority.

The Senate – six year termsThe Courts – appointed to the office, not subject to popular

pressure

Certain procedures allow a minority to stop legislation from

either being passed or implemented.

FilibustersJudicial Review

The Anti-Federalists disagreed with Madison’s assessment and wrote a

response:

Anti-Federalist #10

On the preservation of parties, public liberty depends

A Farmer

The Antifederalist Maryland Farmer, wary of the emergence of a high-toned social class, urges

ordinary Americans to "preserve your jealousy & [for] on the preservation of parties, public liberty

depends. Whenever men are unanimous on great public questions, whenever there is but

one party, freedom ceases and despotism commences. The object of a free and wise

people should be so to balance parties, that from the weakness of all you may be governed by the moderation of the combined judgments of the whole, not tyrannized ever by the blind

passions of a few individuals.“ – source.

Contemporary criticism #1: Madison seems to believe that the natural development of groups will allow these groups to check each

other.

But is Madison painting an adequate picture of the dynamics

of group formation?

This raises important questions about how interests organize and become influential, and equally important questions about why

others cannot.

Madison seems to believe that any new interest will lead to the

formation of a group around it.

In some sense this is true.

But not all interests in society are equally able to organize. Interests that can provide tangible material

benefits to small cohesive members can organize more

effectively than those that cannot.

For examples: The wealthy can form more effectively than the

poor.

It is difficult to form interest groups because not everyone wants to

work to make sure they are effective.

Some people free ride off the work of others.

The Collective Action Problem

The Free Rider Problem

Groups form only if someone figure out how to get potential

members to avoid the tendency to free ride.

Political Entrepreneur

The individual responsible for determining how best to organize

an interest.

Often this means figuring out how members can get selective benefits that are available only to members

of the group.

Groups that can offer the strongest incentives to join will be more

powerful than those that cannot.

Types of Selective Benefits

MaterialPurposiveSolidary

Informational

A material incentive refers to some monetary advantage one gets as a

consequence of being a member of the group that one would not have

otherwise received.

Business, labor and professional groups, for example.

A purposive incentive refers to the idea that someone is part of an

effort greater than themselves, a grand purpose.

Religious, environmental, or any other “cause” that brings

satisfaction, but little monetary advantage.

A solidary incentive refers to groups that exist primarily to

provide people the opportunity to connect with likeminded

individuals.

Informational incentives refer to groups that provide members

information they otherwise would not have been privy to.

Material incentives tend to work best. This explains why business groups tend to be the strongest

interest groups.

Other interests, those of the poor for example, are very difficult to

organize.

As a result, they may be far less to have their interests heard in a

legislative institution.

Interest groups politics benefits the interest that can be most easily

organized.

Current example: the old are more easily organized than the young.

Contemporary criticism #2: While minorities cannot tyrannize, their ability to clog the administration and convulse society may make

governing impossible.

A current criticism Demosclerosis: The progressive loss of

government’s ability to adapt due to interest group pressure.

As societies develop and more groups are able to get benefits

from government, they will fight to preserve those benefits even if it means preventing improvements

to existing policy.

This makes adaptation difficult. Bad policies can sometimes not be

changed because of the political strength of the groups that are

benefitting from them.

Current examples:

SubsidiesPublic Employment

Powerful interest groups can help develop networks that establish

relationships with legislative, executive and judicial officials in

order to tighten control over policies that benefit them.

Popular names for these arrangements:

Iron TrianglesIssue Networks

Sub Governments

The most common arrangement is called an iron triangle.

Members include:

Interest GroupsLegislative CommitteesBureaucratic Officials

If the interest group is strong enough to influence elections to congress and the appointment of

executive officials, they can effectively regulate themselves

Critics argue that a revolving door exists between people that work in

governmental agencies, congressional offices, and interest

groups.

These are the people that may really run things.

The term “revolving door” refers to the fact that people who work for

government often find employment in the interest groups that they had some impact upon.

Question: Is this corruption?

Perhaps then government can be best thought of as hundreds of

small sub-governments that have developed around each of the policies established over time.

Contemporary Criticism #3

With more sophisticated communication devices (online) is

the ability of groups to organize enhanced? Is impulse and

opportunity more likely to coincide now?

Has technological development made majority tyranny possible

again?

Next Week

Federalist 51, the Separated Powers and the Checks and

Balances.

How does the Constitution handle the problem of ambition?