A Different Take on Federalism Part IV

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There’s an ages-old problem with republics: majoritarian tyranny. If the law is whatever the fifty percent plus one of the people or their reps determine, then the legislative body is little different in practice from the typical Florida Homeowners Association and the nation should expect similar results. Thanks to the 17th Amendment, the Senate long ago abandoned its deliberative nature and adopted the passionate, popularly reflexive nature of the House. It is why party interests, rather than those of the nation came to dominate congress. We see this regularly when Senator Schumer joins Speaker Pelosi in wild proposals that threaten liberty.

The Framers based their solution to the danger of majoritarianism on their assessment of human nature. Early at the federal convention, James Madison asked:

What motives are to restrain mankind? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals; in large numbers, little is to expected from it.

Instead of reliance on religion, virtue, or conscience they would depend on the realistic, admittedly ignoble, but reliable inclination of men to follow their self-interest as the path to good government.

They would establish a republic in which the public good is advanced in the same way that commercial prosperity is achieved – individuals pursuing matters for their own benefit. It’s in the interest of every employee to satisfy their employer and popularly elected servants will follow the good as well as bad inclinations of their constituents. Identically, so did the Framers’ Senators protect the interests of their employers: the state legislatures.

Many modern constitutionalists, especially Article V opponents, base their solutions to bad government on pleas to elect better men and women. In turn, the nation could trust these altruistic angels to reliably execute the enumerated powers in Article I § 8 and prohibitions in sections 9 & 10. Unfortunately, this straightforward belief is not the first safeguard to liberty and justice baked into the Framers’ Constitution. Instead, their keystone to free government was a senate of the states, one that wasn’t isolated from the people, but one sufficiently small in number and far enough from the people’s immediate demands to take the long view and to deliberate for the better good.

Thus, the structure of their new government, not the morality of its participants or even the parchment barriers of Article I, was the Framers’ gift to good and enduring government. The only hope for republican government they believed was the establishment of a constitutional institution that, by accommodating “the ordinary depravity of mankind,” would make it in the interest, even of bad men, to act for the public good. Self-interest, the Framers earnestly believed, was the one check that nothing could overcome and the principal hope for security and stability in republican government. To avoid majoritarian tyranny, promote stability and preserve liberty, the structure of the Framers’ “more perfect union” retained the dominant feature of the Articles of Confederation: the states. It worked.

Are any other people as politically involved as Americans? We have caucuses, primaries, general elections, referenda to pass laws and state constitutional amendments from sea to sea, and yet our liberties are less safe with the passing of every election cycle. We often read, “people get the government they deserve,” but I’ll never accept that any American is born into, or deserves, life under corrupt democratic tyranny.