|
|
|
|
Lisa Anderson (editor)
1999
3. Constitutions, The Federalist Papers, and the Transition to Democracy
In reconsidering his essay, “Transitions to Democracy,” two decades later, Dankwart Rustow offered the modest assessment that “my article has been widely quoted in the growing political science literature; yet, rereading it in the light of current events, it is obvious that the model needs to be modified and expanded.” 1 Rustow went on to declare that in his earlier model of transitions he had concentrated on countries that had well established political institutions such as Britain and Sweden. Now, he would pay more attention to, among other things, “the constitutional provisions which make for parliamentary, presidential, or mixed systems.” 2
Constitution-making is among the most important of emerging nations’ legislative concerns. The disintegration of the Soviet Union and the withdrawal of military regimes from active involvement in the forefront of politics in Asia, Africa, and Latin America have all added to the flood of constitutional instruments. Lawyers, politicians, and political scientists have hailed the present moment as the new era of constitution-writing. Constitution writers in large numbers ply their trade in the new republics of Central and Eastern Europe. From Poland to South Africa to Canada artful composers strive to revise contentious constitutional amendments. They write mightily and they write long: 150 pages for South Africa’s constitution, 200 pages for Brazil, more than 500 for India. 3
New regimes and democratic governments produce so many constitutions because so many “basic laws” do not last; constitutions too frequently fall into the category of periodical literature. The United States Constitution—only ten pages long—is anomalous not only in its brevity, but in its longevity; it is now the oldest written constitution in the world.
Rather than ask “Why has the American Constitution endured?” in this essay I am concerned with Rustow’s questions of how constitutional forms can ease and smooth the transition to democracy. I discuss how some of the founders of the American system went about thinking of what they wanted to do which was, not to draw a few lines on parchment, but to intertwine state and society. My analysis of how the Federalist authors went about constructing a new government brings me into some conflict with Rustow’s concept of the transition to democracy, especially his insistence on the prerequisite of a single background condition, national unity. Since Rustow’s original model required only this one prerequisite of national unity, it might appear ungenerous to take issue with so limited a stipulation. This would be particularly the case when Rustow explains: “It simply means that the vast majority of citizens in a democracy-to-be must have no doubt or mental reservations as to which political community they belong to.” 4 Rustow, however, goes on to say that “This excludes situations of latent secession, as in the late Habsburg and Ottoman Empires or in many African states today.” 5
I will argue that these states should not be automatically excluded on the basis of what is an arbitrary criterion. The experience of the United States as well as that of modern African states would tell us that the achievement of unity is not a once and for all thing, but a process over time. Rustow rightly rejects those theorists who insist on preconditions of democracy, e.g., high levels of economic development, and also those who insist on a prior consensus either on fundamentals or on the rules of the game. As he put it, “consensus on fundamentals is an implausible precondition. A people who were not in conflict about some rather fundamental matters would have little need to devise democracy’s elaborate rules for conflict resolution.” 6 But the same is true for the background condition of national unity. Creation of national identity is an ever changing process that requires a period of a testing of the waters by those who are still not confident in their newly emerging sense of national commitment.
Rustow is certainly correct when he says: “new issues will always emerge and new conflicts threaten the newly won agreements. The characteristic procedures of democracy include campaign oratory, the election of candidates, parliamentary divisions, votes of confidence and of censure—a host of devices, in short, for expressing conflict and thereby resolving it.” 7 So too are constitutions, devices par excellence for the resolution of old and ever new conflicts. They are as much snares as process, or—more to our point—snares in their processes.
The Limits of Constitutions as Guarantors of Stability and Democracy
In offering the following reflections on constitutions as trap and process, I would like to begin by lowering expectations about what constitutions can accomplish in the transition to democracy. Social scientists as far apart ideologically and politically as Barrington Moore and Samuel Huntington, for example, agree that social forces far stronger than parchment provide the matrix in which constitutions will or will not be effective. In his The Third Wave: Democratization in the Late Twentieth Century, Huntington quotes Moore’s most succinct formulation: “No bourgeoisie, no democracy.” 8 To be realistic in our discussion of constitutions, we must always take into account the historical context and the social and economic realities. A constitution by itself, no matter how ingeniously designed, no matter how universally admired, will neither create democracy nor limit authoritarian rule.
Constitutions and the institutions they envision are important. But they will not create miracles. To be effective, constitutions must relate organically to a society’s realities; they must accommodate, even as they guide a country’s basic interests. The most successful constitutions will intertwine civil society and the state in ways that are most helpful to “the permanent and aggregate interests of the community.” 9
Rustow argued that, in the “preparatory phase,”
... against this single background condition [national unity], the dynamic process of democratization itself is set off by a prolonged and inconclusive political struggle. To give it those qualities, the protagonists must represent well entrenched forces (typically social classes), and the issues must have profound meaning to them. 10
This complicates matters somewhat. Clearly other “ingredients are indispensable to the genesis of democracy” besides a sense of national unity: “For another, there must be entrenched and serious conflict. For a third there must be a conscious adoption of democratic rules. And, finally, both politicians and electorate must be habituated to these rules.” 11 The question becomes how the constitution and the society interrelate.
Transitions From Authoritarian Rule, and Problems of Democratic Consolidation
In analyzing democratic transitions in recent years, social scientists have distinguished between problems of “transitions from authoritarian rule” 12 and problems of “democratic consolidation.” 13 The first transition focuses on what undermines an authoritarian regime and will bring it down. The second transition focuses on “the broader and more complicated process associated with the institutionalization of a new and democratic set of rules for political life.” 14 We distinguish between the two periods to understand the most important moments through which states evolve in democratic transitions, and to better understand why transitions start.
After much debate, political scientists have reached an apparent broad consensus that conflicts within the authoritarian coalitions are the primary reason for the advent of a transition, which is then advanced through a “series of bargains” between state and opposition elites. 15 Scientific typologies are constructed around distinctions among different types of transitions—transitions through transaction, transitions through reform, transitions through regime defeat, transition through rupture, and transition through extrication. 16 Gerardo Munck has argued, however, that only a detailed knowledge of intra-elite, establishment elite-opposition elite, and elite-mass interaction in specific countries will provide the basis for understanding what actually happened in those instances.
Moreover, we cannot assume that “transitional democracies,” that is transitional from authoritarian regimes, will automatically, naturally, or inevitably become “consolidated democracies.” What is necessary is the institutionalization of a “new regime type,” and what the pluralists have called “a new set of rules for the political game.” 17 How can a new state consolidate a democratic system at least to the extent that the major actors in a society become willing to accept the rules, to work within the new system for the advancement of their interests?
We still do not know enough about the circumstances under which political actors have the power to break free of supposedly deterministic forces to create their own society. We do, however, know that “institutional settings” are crucial elements in this process. What I would like to do, therefore, in the rest of this essay is to explore some of those elements that went into a constitution that seems to have been, by the measurement at least of time, effective.
Background
The Federalist Papers consisted of a series of 85 essays written between 1787 and 1788 by James Madison, Alexander Hamilton, and John Jay. The essays appeared as paid advertisements in the newspapers of New York, sandwiched between advertisements for alcohol and tobacco. Their purpose was to convince the limited electorate of New York to vote for the new Constitution.
The Federalists considered the government under the first American Constitution, the Articles of Confederation, to be a failure. Adopted by the Continental Congress on November 15, 1777 and ratified in 1781, the Articles provided for a loose federal union, or as Article 3 put it, “A league of friendship for common defense.” The government lacked a national executive; preserved most of the sovereignty and autonomy of each state; and had no power over individuals, either to tax or to raise an army. It could only request contributions from the states. The Federalists offered a far different alternative. 18
Among the basic propositions found in the Federalist papers are the following: (1) Never trust those who tell you that “the people” should rule; (2) Since everybody will declare that “Democracy is a government of, by, and for the people,” don’t trust anyone; (3) Never believe “great men”; once in power they will, if left to their own devices, become corrupt; (4) Never believe anybody; human nature is inherently selfish and untrustworthy; (5) Society consists of multiple interests—all out for themselves; (6) Nevertheless—despite propositions 1 to 5—through what at the end of the eighteenth century was known as the new “science of politics,” the Federalists were convinced, and sought to convince the public, that they could create a government so strong that it could guarantee stability, but so controlled that it would not threaten liberty.
Keys to the New Constitutional Arrangements
Why did they think they would succeed? What did they think was the key to the new arrangement?
There were, in fact, three keys: (1) the Federalists brought civil society into the state, but did so in a calculated manner; (2) they gave an indirect answer to the question of what was the permanent and lasting good of the community, and that answer was that there was no defined substantive good, but that there was a process and a machinery, and that was what mattered; (3) although they never used the word “capitalism” (a word not even invented until the end of the nineteenth century), they assumed that most individuals’ primary activities would take place outside the realm of the state. They envisaged, in other words, a strong state; but strong because it could be lean and mean, strong in limited areas for well-defined purposes.
They also counted on the patience of the people. They offered an implicit wager that if they could involve the factions of society in the process, if they could make that process important, then the process would be valued in itself. Their constitutionalism created a political culture of patience and forbearance.
This was not necessarily “good,” which is why I present this inquiry as an analysis, not advocacy. I part company with those pluralists who have discussed the Constitution merely as a mechanism for the resolution of disputes among conflicting interest groups, or only as process not linked to substantive interests. 19 Among the substantive interests that the Federalists incorporated into the body of the Constitution, and that already had considerable protection in the laws of the states, as well as in the English common law, were: (1) the integrity, that is, the preservation of the power, of the state governments; (2) a limited franchise that made political participation, voting and office-holding difficult; and (3) the protection of property. None of these interests were made the subject of absolute injunctions or prohibitions. Everything could be changed. However, the Federalist linked their interests to the processes that they laid out in ways that still affect policy in contemporary politics. (That it is still difficult for a modern president to pass a coherent program was illustrated, for example, before the elections of 1994 when a minority of Republicans in the Senate used the filibuster to prevent the passage of President Clinton’s health care and economic recovery programs.)
The problems that the Federalists faced differed, obviously, from those that face Ethiopia, Eritrea, and other developing countries today: those enormous issues of nationalities, of autonomous cultures, of the need for immediate universal franchise, of the necessity of rapid economic development. And yet, there is a family resemblance. The American colonies at the time were poor. Europeans, the British in particular, considered the Americans to be backward, and living conditions to be primitive. The Americans, they said, did not have a civilization, and certainly not one that they could call their own. (In 1954, Max Lerner offered a course at Brandeis University called “America as a Civilization.” When he published a book with the same title, critics hailed his courage in acclaiming the existence of a unique American civilization.) The system of government proposed by the Federalists then offered few programs and little immediate gratification. It lowered expectations about what government would offer in the short term. However, despite the obvious materialist and other gender, religious and racial biases of the Federalists, their system did offer something of possibly more importance: hope and a promise about the future.
Direct Action for the Dominant Class
For the elite and for the dominant bourgeoisie, the government did offer immediate programs. Under Alexander Hamilton as Secretary of the Treasury, the first American administration’s action agenda included the assumption of all debt obligations of the previous government; a national bank; a mint; a standard currency; protective tariffs for infant industries; a unified currency; subsidies for business. This program met a real need in responding to the aspirations of a politically organized and militant, self-conscious and aware class.
For the mass of the farmers and town workers, for the slaves and women, for those without property and education, for those who did not know what or how to ask, the constitution offered an opening. The constitution offered a legal path for political participation for those of still dawning self-consciousness. The Federalists feared anarchy more than anything else, even foreign invasion. At least two of the “founding fathers,” Gouverneur Morris and Alexander Hamilton, had their houses attacked by the “mob”; others had their carriages stoned; their lives threatened; their “honor” called into question. They feared the “people.” And so they created channels to contain discontent. They wanted to keep “the people” off the streets, and they did this by getting them into the voting booths. 20 However, by opening the door of electoral participation, they created a new definition of equality, and they established a new standard of fairness.
“Equality” would be determined by who had the right to participate in the electoral system. The system as it then existed was obviously unequal and the procedures were blatantly unfair. This was true for both office-holders and candidates for office, and for electors. Whole categories of voters—slaves, women, the unpropertied and uneducated—were automatically excluded. The fight became one to “equalize” procedures and electoral opportunities. As Harvey Mansfield put it, this democracy forced society to substitute an indirect question for a direct one. 21 The question became, not “What has government done for us?”; but “Has the government provided fair procedures? Have the means for the selection of the government been proper?” If so, then the people can have no complaint because their rights have been safeguarded. So long as they have had the opportunity to have “input into the system,” moreover, the responsibility for the outcomes is “on their heads.” They had their chance. If the properly chosen representatives create policies not of their liking, it is the fault of the people. And the remedy is also at hand: at the next election, the people can choose other representatives. They have the ability to turn out of office “the rascals,” and to pursue their interest with other persons. “Equality” of social condition could be sought by the people if that is their wish, and they have the opportunity to do so. But if they are frustrated in this pursuit, they have only themselves, not their government, to blame.
Built into this system, then, is also a time perspective that looks “to the long run,” to repeated and to future efforts. Those with thwarted aspirations will have their day. What they must do is go back to the “grass roots” and organize. But the discontented must organize not to overthrow the government or to change the basic institutions of the state. They must organize to win the next, and the next, and the next of many elections. This is how to create a culture of the long view and of vast horizons.
Voting studies by contemporary political scientists have confirmed what the Federalist authors intuitively knew: most people, most of the time, simply want to mind their own business; they want to be left alone. All that most people, most of the time, ask of government is the hope of improvement, sometime, not always now, and even more surprising, not even always for themselves. If they can be reasonably assured that the life-chances of their children will be better, the majority of people, most of the time, will tolerate great abuse from the social order. 22 The best way to create this faith, this long-range perspective, this culture of hope and optimism, is to bring the people into the system, to interrelate government and society.
How was all of this to be done? What is the evidence from the Federalist Papers for these propositions? 23
Appeals to the People and National Unity
Publius appealed to the people and alleged national unity, but feared the one and knew that the other did not exist. Rather than assume the existence of national unity as a “background factor” or a prerequisite for their new democracy, as Rustow’s thesis would warrant, they were confident that their new system would manufacture what did not in fact exist.
In Federalist Paper No.1, 24 Alexander Hamilton begins by addressing the people of the state of New York to tell them that they are called upon to deliberate on a new Constitution for the United States, and that “nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world,” are at stake. 25 Even in the first paragraph of the first paper, however, Hamilton equivocates and qualifies his appeal to the people, when he says: “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident or force.” 26
John Jay also begins with flattery of the “people” in Federalist Paper 2, especially in his declaration of national unity. He surely stretched the truth when he expressed his pleasure that Providence has given “this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs....” 27 Nothing could have been further from the truth, even if one takes into account the flush of enthusiasm that came from the rebels’ victory in their struggle with Great Britain (and forget for the moment the quarter of the population that fled to Canada, Great Britain, or abroad, and the probable majority which did not share Publius’s perspectives). Well-founded fear of domestic insurrection, as the Whiskey rebellion of Western Pennsylvania and Shays’s rebellion of Western Massachusetts demonstrated, drove the early American political establishment in their constitutional labors. They knew that they did not have national unity in any profound sense. They sought to create it through their constitutional endeavors.
In the second paper, John Jay declares that “the people of America” are called upon to decide one of the most important questions that ever engaged their attention. He then immediately demands that since “Nothing is more certain than the indispensable necessity of government,” “the people must cede to it some of their natural rights... ” 28 In Federalist 3, Jay lays out the need for a strong central government because of the danger to the preservation of peace and tranquility ostensibly from “foreign arms and influence, as from dangers of the like kind (Jay’s emphasis) arising from domestic causes.” 29 Under guise of worrying about foreign invasions, Jay clearly laid out what for him and his fellows was the much greater danger, one stemming from a lack of national unity. What Jay worried about, in his words and in his emphasis, was a “disunited America.” 30 He worried about “direct and unlax violence” and about unjust wars: “Such violences are more frequently occasioned by the passions and interests of a part than of a whole, of one or two States than of the Union.” 31
Providing for “the safety” of the people is the first great objective of government. While external aggression would be a natural fear for those who had just fought for their independence from Great Britain, by Federalist 3, clearly the danger to “peace and tranquility” “arising from domestic causes” is the great concern of the Federalists. 32 Hamilton forthrightly declares: “A firm Union will be of the utmost moment to the peace and liberty of the States as a barrier against domestic faction and insurrection.” 33
While constantly alleging that “the people are the only legitimate fountain of power” 34 , the Federalists’ fear of the people was so great that all of Federalist 49 is devoted to explaining why nobody in his or her right mind would trust the people, or think of continuously appealing to their judgment. There were “insuperable objections against the proposed recurrence to the people.” Among those objections were that: “The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated.” They didn’t trust the “public,” (a word of then recent appearance) because they feared its “passion.” They warned: “The danger of disturbing the public tranquility by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” 35
The Majority as a Faction
The Federalist authors, however, did not merely fear the “people” as a great beast. They feared government by the majority. James Madison begins that most famous of the Federalist Papers, No. 10, by arguing that: “Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” 36 The Federalists fulminate against the “violence” of faction. The factions that really worry them are those consisting of the majority of the people. Madison defines faction in this way:
“By a faction I understand a number of citizens whether amounting to a majority or minority of the whole who are unified 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.” 37
In the same paper Madison states that “our governments are too unstable, that the public good is disregarded in the conflict of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” 38
So what did they propose to do about it?
The Nature of Man
The Federalists’ beliefs about basic human nature complicated their task. They were challenged by those who maintained that because Americans were one people (as they had themselves proclaimed), they had no motive in fighting each other and therefore no need of a strong central government. Hamilton replied:
A man must be far gone in Utopian speculations who can seriously doubt that if these states should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence would be to forget that men are ambitious, vindictive, and rapacious. 39
If the ordinary run of mankind could not be trusted, perhaps the rare, extraordinary individual, the “great man” merited confidence. After all, most Americans admired General George Washington. His most ardent followers had demanded that instead of an elected president, a grateful citizenry should crown him emperor. These partisans of Washington had gone so far as to proscribe the proper ceremony, including the stipulation of a robe of ermine. 40
This was an age that admired the Classical Period of Greece of the fifth century b.c. The “beau ideal” of the framers was the Athenian statesman. They considered, therefore, the greatest man of all time to be Pericles, lawgiver and leader of Athens at the height of the polis’ power.
What Does Hamilton Tell us About Pericles?
“The celebrated Pericles,”
in compliance with the resentment of a prostitute, at the expense of much of the blood and treasure of his countrymen, attacked, vanquished and destroyed the city of the Samnians. The same man, stimulated by private pique against.... another nation of Greece, or to avoid a prosecution in which he was threatened as an accomplice in a supposed theft of statuary... or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the Peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. 41
If you can’t trust Pericles, who can you trust? The answer is clear: no one. Especially to govern. As Madison observes, “in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” 42
The New Science of Politics
How was this to be done? The Federalists harbored no doubt of their ability to create a stable, lasting, and even just government. They did not share Gramsci’s dictum, “Pessimism of the intellect; optimism of the will.” They radiated an optimism of both will and intellect.
Children of the Enlightenment, they were heirs of the French Philosophes. Voltaire, Diderot, and later Montesquieu adapted the perspectives of naturalists like Galileo and Isaac Newton who had, from the beginning of the seventeenth century, laid the foundations of modern science. These “Newtonian” scientists considered that the world could be steadily observed; that these observations could be reduced to a few knowable laws; and that these laws, when properly understood, could be used in ways that could manipulate nature; and that this manipulation would result in tremendous new levels of productivity. 43 That meant that humankind had a future of unlimited potentiality.
Mankind had only to reexamine all institutions, and to see them as they were, that is, without the prejudices of faith, or of interest, or of self-love. Their tool, taken from the scientists—and the Age made no distinction between physical and social science—was “Reason,” written with a capital “R.” The philosophes, adapting the Christian model, substituted for the belief that all persons had a spark of the divine in them, the faith that every person had within themselves the capacity to Reason, and to arrive at universally reasonable conclusions.
This is what Hamilton reflected in Federalist No. 9: “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” 44
No Paper Constitution; Not Merely Checks and Balances
After two World Wars, Freud, and the Atomic Bomb, we may well wonder at the naive optimism of the Founders. On at least one point, however, we may still take them seriously: on their insistence that they did not want to produce a paper, or as they put it, a “parchment” constitution. They were aware from their own study of constitutions that this was a possibility, and they determined to guard against it.
Now how did they propose to do this? In the way that we usually read the Federalist Papers, the answer is clear: through a system of checks and balances, a division of powers, and what turned out to be an independent judiciary. In Federalist No. 9, where they declare that they know new scientific principles, they begin with, as their examples:
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: these are wholly new discoveries, or have made their principle progress toward perfection in modern times. 45
They also go on to explicitly acknowledge their intellectual debts for these ideas, especially to Montesquieu. Something, however, is missing. They say of these institutional arrangements: “They are means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided.” 46 And by saying these are “means,” they imply that there are other means, and other considerations that may be more important. Indeed, they add one more element:
To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the Enlargement of the Orbit within which such systems are to revolve. 47
Now what did they mean by this phrase “ENLARGEMENT OF THE ORBIT,” which Hamilton set off by capital letters, something almost never done in the Papers, and which he introduced with apparent modesty but with the warning that this was something important, “however novel it may appear to some.”
Checks and balances and separation of powers were insufficient unless they organically grew, not merely out of political interests, but out of social and economic interest as well. Those who have not read Montesquieu carefully, Hamilton warns us, “seem not to have been apprised of the sentiments of that great man expressed in another part of his work (obviously the part that most of us would not have read where the truth of his message really is to be found), nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence.” 48 If you accept Montesquieu’s principles we, and the country, will suffer terrible consequences.
Now this is not the “appreciation” of Montesquieu that we had expected from the Federalists. However, there is no mistake. Hamilton accuses him of having made distinctions “more subtle than accurate” 49 that have merely resulted in “the novel refinements of an erroneous theory.” 50 But more than this, to accept the ideas of Montesquieu is to risk catastrophe. Hamilton lashes out at one who is supposed to be his compatriot in ideas with bitterness. Hamilton says of Montesquieu:
If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt. 51
What was the “point” that so concerned Hamilton? Montesquieu had erred, not so much in suggesting that “a confederacy” might sometimes be an acceptable form of government, as in recommending “a small extent for republics,” that is, a small state, “far short of the limits of almost every one of these States.” To be certain that the point be well comprehended, Hamilton went on: “Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply.” 52
We cannot understand Hamilton’s vehemence in rejecting Montesquieu’s recommendation for small states as an ideal—an apparently reasonable suggestion—without reading Paper No. 9 in conjunction with Paper No. 10. Paper No. 10 appears to drop the subject of its predecessor and is written by Madison. It says nothing more about Montesquieu, and is about factions, but it is an example of how all the Federalist authors agreed on fundamentals. 53
Madison unhesitatingly continues Hamilton’s key theme: a large state is essential for liberty. Why? Because of the many factions it contains. Factions cannot be eliminated; only their effects can be controlled. By whom? Only by other factions. This was an essential key to the genius of the Federalists’ system. They turned what appeared to be an insurmountable barrier to good and limited government into the foundation of democracy’s survival and existence. They said, “let faction combat faction.” But there had to be a lot of factions in existence in society for this to happen. Otherwise, if a majority steadily fought a minority, the majority would prevail. 54
In insisting that checks and balances had to exist in society, the Federalists went beyond Montesquieu whom, they argued, could not have properly understood that formal legal and institutional arrangements require a societal basis; otherwise he would not have recommended small states where homogeneity would make restraints on power more difficult.
Bringing Society Into the State
The Federalists went beyond Montesquieu in another way, a way that is of particular relevance for those who talk about “civil society” today, and for those in modern Africa and other emerging societies who want a limited state that will leave private associations alone. The Federalists’ message was: one could not trust the state to keep its hands off anything. The state must be made to curb itself. They could accomplish this only by bringing society itself into the state. Diverse elements in society must be properly seated in the state, that is, they must properly institutionalize those necessary factions. 55
The identity of factions, their nature and composition, would vary over time. Reasonable persons could also differ over conceptions in the detail of the prescribed institutions. Drawing a line, however, or rather, not drawing a line between state and civil society was what really mattered. This is what was key. This is what Montesquieu did not understand. This is what those contemporary thinkers who see civil society apart from the state, or who hope or pray that the state will tolerate or leave alone civil society, do not understand. The constitution lays down a process that results in the incorporation of factions into the institutionalized offices of the state.
Madison explicitly links together state and civil society in one of the rare passages where he uses the term “civil society” when he tells us that: “Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society.” 56 Stability, however, will not be achieved in a small society. In Federalist No. 10, Madison implicitly addresses Montesquieu when he says:
... a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischief of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. 57
What is to be done is clear: “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.” 58
Practical Difficulties in Creating A Constitution
The difficulties of constructing a self-limiting government are many. There are matters of expert knowledge; and there are matters of delicate balance and of judgment where reasonable persons can differ. “On comparing these vital ingredients with the vital principles of liberty,” Madison tells us, in determining the length of the terms of officials, for example, and weighing the demands of stability with the need for keeping officials dependent, “we must perceive at once the difficulty of mingling them together in their due proportions.” Madison goes on to say that: “Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments.” 59 And constitution makers must also face matters of judgment and fact that require special empirical investigation when it comes to deciding on the exact division and separation of powers:
When we pass from the works of nature, in which all the delineations are perfectly accurate and appear to be otherwise only from the imperfections of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us 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; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. 60
The work of the political scientists, Madison is telling us is difficult—but, not impossible. What they have is a method, and basic principles. If properly applied, this new “science of politics” can be effective, not just in the new American states, but anywhere, presumably including Ethiopia and Eritrea.
We know, for example, that: “The accumulation of all powers, legislative, executive, and judiciary, 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.” 61 But we also know, and we must never forget, that legal scribbling is not the real world, and so: “... a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” 62
So how and what will make this system work in the real world? Madison puts the question this way:
To what expedient then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution? The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. 63
A number of institutional practices and provisions can help keep “the several constituent parts” in “their proper places.” Among these, “... it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”
The greatest safeguard of liberty, however, was to link together the office, the man and the social interest in a system where every office, person and social interest was pitted against every other; where the battles of society were brought into the halls of government, as well as into the smoke-filled rooms of politics. As Madison put it, “But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 64 Only one method could succeed in this fundamental endeavor. “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
To think, and to plan in this way, he admitted, was not very nice. Realistically, however, there was nothing else that one could do:
It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
The defects of human nature, therefore, can be remedied by constitutional arrangements:
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. 65
Again, however, they warn that institutional restraints will carry and protect the union only to a limited degree. They can only work if they are properly anchored in society.
“To Guard One Part of Society Against the Injustices of the Other Part”
Madison advises that: “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” For Madison, society is a complex entity made up of many conflicting interests: “Different interests necessarily exist in different classes of citizens.” Again, the biggest problem is the majority: “If a majority be united by a common interest, the rights of the minority will be insecure.” Madison then expands upon the remedy:
There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority—that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impractible.
The first method has the danger that the dominant authority might act arbitrarily. The second method is that of the federal republic of the United States: “Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, 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.” 66 The “permanent and aggregate good of the community” is both ascertained through, and constituted by, the process as well as the outcome of government.
Justice Is the End of Civil Society
Madison has one argument left. And this is a surprise from one who has all along maintained that selfishness and vindictiveness characterizes the action of man. He appeals to “justice”:
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, 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. 67
Madison’s plea is also a warning: it is a claim for higher principle—the quest for justice. It is a declaration that protecting the weak, that apparently altruistic actions, can also be self-protecting. And it is a testament that where the weak are not made secure in a rightful pursuit, the strong will not be secure either, and all will be threatened by the specter of a Hobbesian state of nature. Thomas Hobbes did not have to look into his imagination to find “a state of nature” where the life of man was “ solitary, poor, brutish, nasty, and short.” Hobbes wrote of the horrors of early seventeenth century England decimated by the civil wars.
Is it too much to hope that the wars of genocide, of rape camps, of ethnic cleansing in Bosnia, and of the fratricide in Somalia might not have taught African and other intellectuals—those in power, and we who speak of constitutions—that we must seek to create secure places for all cultural and ethnic interests?
Failures of the Federalists and of the Constitutional System
To speak of justice in contemporary academic and political circles is not modish. But those who would hold the American Constitution and the American system as a model for the emulation of others, must recognize certain lasting deficiencies of that system.
Without providing a full scale critique, one must at least point out that in one of the richest countries of the world children still go to bed hungry, thousands of the homeless beg in the streets, people of color lead lives below the national standard, the middle-class fears for its old-age, even the affluent worry about the affordability of medical care, and the top four percent of Americans earn as much in wages and salaries as the bottom fifty-one percent. 68 We must count substantial portions of whole generations as part of the social costs of “indirect” government.
These lesser and lessened Americans are not the result of “mistakes,” accidents, or irrationalities. The “system” has produced these results. The Constitution guarantees only participation in process, and not concrete socially beneficial results; the structure is founded on limited interests; the political culture that encourages the deprived to think in terms of timespans that cannot meet their real needs.
Today, every international agency, every bank and lending agency, every government and transnational corporation, as well as most academic experts, urges governments of “emerging nations” to “restructure” and to cut back or eliminate every social program.
As the Federalists would say, “there is much truth in this advice.” We should, however, remember that to postpone aiding those in need, for “the long run” is to sacrifice for some “higher purpose” that which may never be. Once communism called for sacrifice in the name of future generations. How ironic, and how equally believable, when capitalism demands the same.
Conclusion
In creating a new democracy, the Federalists claimed that they sought justice as the end of the state and of civil society. They did not view the state and civil society as standing apart, or as in dangerous balance. Rather they envisaged, and they encouraged the intertwining of states and factions, of rapacious man and of balancing offices. They designed a system of government that made it difficult for “the people” to get anything done, that specially protected and furthered the interests of property. But they instituted a mechanism for participation that promoted a long view, that trapped the impatient, and that built hope in the future. These constitutional values were not directed to the issues of the elimination of abject poverty and extreme inequality except very indirectly.
This is my understanding of the transition to democracy laid down by the founding fathers and the American Constitution, and it was a mixed blessing.
Dankwart Rustow warned in his “Transitions to Democracy” that “... a country is likely to attain democracy not by copying the constitutional laws or parliamentary practices of some previous democracy, but rather by honestly facing up to its particular conflicts and by devising or adapting effective procedures for their accommodation.” 69 For the “people” in Publius’ sense, in the United States as well as in emerging nations, that still sounds like not only good analysis but excellent advice.
Endnotes
I wish to express my appreciation to John Bowman, Alem Habtu, Joseph S. Murphy, Larry Peterson, Solomon Resnik, Burton Zwiebach and Ruth Markovitz. They encouraged an earlier form of this effort, saved me from error, and contributed special insight. They also stopped their own work to accommodate my schedule.
An earlier version of this paper, “Constitutions, Civil Society, and the Federalist Papers” was presented to the symposium “On the Making of the New Ethiopian Constitution,” sponsored by the Inter-African Group, Addis Ababa, Ethiopia, May 17–19, 1993. Another variation, focusing on “checks and balances” was given to the meeting on “Constitution and Constitution-making,” sponsored by the Constitutional Commission of Eritrea, Asmara, Eritrea, January 7–11, 1995. I wish to thank the organizers of those conferences and especially Abdul Mohammad in Ethiopia, and Bereket Habte Selassie and Amare Tekle in Eritrea, for the opportunity to participate.
Note 1: “Democracy In The Late Twentieth Century: Historic Perspectives on a Global Revolution,” Unpublished paper presented to CUNY Political Science Conference, March 9, 1990, p. 5. Back.
Note 3: See for example, Anthony DePalma, “Constitutions Are the New Writers’ Market,” New York Times, November 30, 1997. See also as examples of the vast current literature of this genre, inter alia, the following collections: Arend Lijphart and Carlos H. Waisman, eds., Institutional Design in New Democracies (Boulder: Westview Press, 1996); Mary Ellen Fischer, ed., Establishing Democracies (Boulder: Westview Press, 1996); Karol Edward Soltan and Stephen L. Elkin, eds., The Constitution of Good Societies (University Park: Pennsylvania State University Press, 1996); and Abdo I. Baaklini and Helen Desfosses, eds., Designs for Democratic Stability: Studies in Viable Constitutionalism (Armonk, N.Y.: M.E. Sharpe). Back.
Note 4: “Transitions to Democracy: Toward a Dynamic Model,” Comparative Politics 2, no. 2 (April 1970) p. 350. Back.
Note 5: Rustow goes on to say: “National unity is listed as a background condition in the sense that it must precede all the other phases of democratization but that otherwise its timing is irrelevant. It may have been achieved in prehistoric times, as in Japan or Sweden; or it may have preceded the other phases by centuries, as in France, or by decades, as in Turkey.” p. 351. One way or another, the unity must be there. Back.
Note 8: Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991), p. 37. Cf. Barrington Moore, Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World (Boston: Beacon Press, 1966). Neither Moore nor Huntington tells us what type of bourgeoisie, or how much of a bourgeoisie, is necessary for democracy to take root. For an exploration of these contentions see Irving Leonard Markovitz, Power and Class in Africa (Englewood Cliffs: Prentice-Hall, 1977); and especially the introduction, pp. 3–21, in Studies in Power and Class in Africa (New York: Oxford University Press), 1987. Back.
Note 9: Alexander Hamilton, James Madison and John Jay, The Federalist Papers (New York: New American Library, 1961), No. 10, p. 78. Back.
Note 10: Rustow, p. 352. Back.
Note 12: G. O’Donnell, P. Schmitter and L. Whitehead, eds., Transitions from Authoritarian Rule: Prospects for Democracy (Baltimore: The Johns Hopkins University Press), 4 vols. Back.
Note 13: Scott Mainwaring, Guillermo O’Donnell and J. Samuel Valenzuela, eds., Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective (South Bend, Ind.: University of Notre Dame Press, 1992). Back.
Note 14: Gerardo L. Munck, Comparative Politics 26 (April 1994), pp. 355–375. Cf. Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (New York: Cambridge University Press, 1991). Back.
Note 15: However, see further Huntington, The Third Wave, who offers an eclectic array of underlying causative factors for the transitions to democracy that range from issues of legitimacy to changing social structures to foreign interventions to demonstration effects of the experiences of other countries to changing religious doctrines. But Huntington also focuses on different types of elite interactions when it comes to understanding the advance of the transition. See especially Chapter 2. Back.
Note 16: “Transition through transaction” and “transition through reform” are really different terms used by different social scientists to describe the same type of process of negotiated reform; “transition through rupture” and “transition through regime defeat” are also roughly equivalent terms used by different authors in the literature; “transition through extrication” is when the rulers of an authoritarian regime continue to hold enough power so that they can negotiate their retreat from power. Cf. Munck, “Democratic Transitions in Comparative Perspective,” p. 359.
Still another regime transition modality is typified by a departing authoritarian elite which holds enough power to determine not merely their retreat from office, but policies and structures, and values of their “democratic” successors. We could, unfortunately call this “transition through perpetuation.” Cf. J. Patrice McSherry, Incomplete Transition: Military Power and Democracy in Argentina (New York: St. Martin’s Press, 1997), who does not use the term, but who shows how the military can maintain power through affecting basic organs of the state and society. Back.
Note 17: Cf., e. g. Arthur Bentley, The Process of Government (Chicago: University of Chicago Press, 1908); and David Truman, The Governmental Process (New York: Knopf, 1951). Back.
Note 18: Yet, a forceful opinion has maintained that the government under the Articles effectively served popular ends. Who needed a “strong” government? “Strong” in terms of what? To put down debtors marching on banks, or small farmers protesting their mortgage foreclosures? When exactly this situation arose in Massachusetts, and the State government could not raise the funds for an army to put down Daniel Shays’s rebellion in 1786–87, the propertied classes panicked. Cf. Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Chicago: University of Chicago Press, 1981). This is the first volume, published separately, of Storing’s mammoth, seven-volume, The Complete Anti-Federalist, published by the University of Chicago Press in 1977. For the argument of this paper, see especially Storing’s second chapter, “The Small Republic,” pp. 15–23. Cf. Merrill Jensen, The Articles of Confederation (Madison: University of Wisconsin Press, 1940).
Over the years, scholars have debated the extent to which the constitution was the result of economic interests of the dominant establishment. See, e. g., Charles Beard’s classic case for An Economic Interpretation of The Constitution (New York: Macmillan, 1913; and Forrest McDonald’s impressive refutation, We, The People (Chicago: University of Chicago Press, 1958). Back.
Note 19: See for example Seymour Martin Lipset, Political Man (Garden City: Doubleday, 1960); and The First New Nation. Cf. Robert Dahl, Preface to Democratic Theory (Chicago: University of Chicago Press, 1956). Back.
Note 20: But they did not rush to get the people onto the electoral rolls. Back in 1940, John Herman Randall,Jr. made the point very nicely when he said: “Benjamin Franklin, for example, believed that ‘as to those who have no landed property then allowing them to vote for legislators is an impropriety’; and Hamilton thought that those who possessed no property could not rightly be regarded as having any will of their own. In not one of the new state constitutions was the vote granted to as much as half the adult male population. Office-holders were required to possess a considerable property in land: in Massachusetts the governor had to possess a freehold valued at £1000, in Maryland at £5000, and in South Carolina at £10,000.,” The Making of the Modern Mind (Boston: Houghton Mifflin, p. 347).
When Alexander Hamilton returned to the private practice of the law in 1795, he exemplified the new alliance forged between legal and commercial interests. In one of his first new cases, Hamilton won the gigantic damage judgment of $120,000. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977, p. 141). Back.
Note 21: Cf. Harvey C. Mansfield, “Hobbes and the Science of Indirect Government,” American Political Science Review 65 (1) (1971), pp. 97–110. Back.
Note 22: Cf. Kay Lehman Schlozman and Sidney Verba, Insult to Injury: Unemployment, Class, and Political Response (Cambridge: Harvard University Press, 1979). Back.
Note 23: For a much more sanguine interpretation of the constitution and of the driving forces behind the Federalists, see the 1993 Pulitzer Prize winning The Radicalism of the American Revolution by Gordon S. Wood (New York: Knopf, 1992). Wood denies that Madison and the Federalists were modern-day pluralists. Rather, he maintains—in direct conflict with the thesis of this paper—that: “They still clung to the republican ideal of an autonomous public authority that was different from the many interests of the society.” And they were able to do so because they believed that the men holding office in the new national government would more apt to be “disinterested gentry who were supported by proprietary wealth and not involved in the interest mongering of the marketplace.”p. 253.
The image that Wood conveys of America as a “prosperous, scrambling, enterprising society” consisting almost entirely of a “middle class” is jarring, not only because it downplays the existence and the condition of slaves, but also because of its failure to give significant weight to all of those class divisions in city, farm and the regions. See for example the essays in Alfred F. Young, ed., The American Revolution: Explorations in the History of American Radicalism (DeKalb: Northern University Press, 1976), especially the essays by Edward Countryman on “Northern Land Rioters,” pp. 37–70; Rhys Isaac, “Popular Culture and the Revolution in Virginia,” pp. 125–158; Dirk Hoerder, “Boston Leaders and Boston Crowds, 1765–1776,” pp. 233–272; and Joan Hoff Wilson, “Women and the American Revolution,” pp. 383–446. Back.
Note 24: Federalist 1, p. 33. Back.
Note 26: Ibid., p. 33. Emphasis added. Back.
Note 27: Federalist 2, p. 38. Back.
Note 28: Federalist 2, p. 37. Back.
Note 29: Federalist 2, p. 42. Back.
Note 30: Federalist 2, p. 42. Back.
Note 31: Federalist 2, p. 44. Back.
Note 32: Federalist 3, p. 42. Back.
Note 33: Federalist 9, p. 71. Emphasis added. Hamilton goes on to say: “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 continuously agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.” p. 71. Back.
Note 34: Federalist 49, p. 313. Back.
Note 35: Federalist 49, p. 315. Back.
Note 36: Federalist 10, p. 77. Back.
Note 37: Federalist 10, p. 78. Back.
Note 38: Federalist 10, p. 77. Back.
Note 39: Federalist 6, p. 54. Back.
Note 40: Cf. Henry Steele Commager, Majority Rule and Minority Rights (New York: Oxford University Press, 1943). Back.
Note 41: Federalist 6, p. 55. Back.
Note 42: Federalist 51, p. 323. Back.
Note 43: See for example, W. W. Rostow, The Stages of Economic Growth: A Non-Communist Manifesto (New York: Cambridge University Press, 1960); Nathan Rosenberg and L. E. Birdzell, Jr., How the West Grew Rich: The Economic Transformation of the Industrial World (New York: Basic Books, 1986); Joel Mokyr, The Lever of Riches: Technological Creativity and Economic Progress (New York: Oxford University Press, 1990); Alfred W. Crosby, The Measure of Reality: Quantification and Western Society, 1250–1600 (New York: Cambridge University Press, 1997). Back.
Note 44: Federalist 9, p. 72. Back.
Note 45: Federalist 9, p. 72. Back.
Note 46: Federalist 9, p. 73. Back.
Note 47: Federalist 9, p. 73. Back.
Note 48: Federalist 9, p. 73. Back.
Note 49: Federalist 9, p. 75. Back.
Note 50: Federalist 9, p. 76. Back.
Note 51: Federalist 9, p. 73. Back.
Note 52: Federalist 9, p. 73. Back.
Note 53: For a fascinating discussion of the “split personality” of Publius, and an effort to find a foreshadowing of the deep rupture that would reveal itself between Alexander Hamilton and James Madison see Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), pp. 103–105. Of main concern for this essay, Hamilton was clearly more ready to use force, if all else failed, to maintain national unity than Madison or Jay. Back.
Note 54: This was the vision of another student of the American system, and of the Federalist Papers, Alexis de Tocqueville. Despite his fulsome praise of their understanding of politics, de Tocqueville fundamentally disagreed with the faith of the Federalist authors in the ability of factions to check the rise of tyranny. His sense of terror stemming from “the inexorable spread of equality” made the tyranny of the majority, and then of one man, virtually unstoppable. Alexis de Tocqueville, Democracy in America, Vol. I (New York: Vintage). Back.
Note 55: In Federalist 10, Madison says: “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.” p. 79. Emphasis added. Back.
Note 56: Federalist 37, p. 226. Madison adopts, but subtly changes the Lockean use of the term “civil society.” Madison, like Locke, views civil society and the state as two separate entities, the dominant view by the middle of the eighteenth century. However, unlike Locke, who develops the theme of civil society and the state as different entities, the Federalists are preoccupied with their interrelationships. This is a different theme than that of the mid-nineteenth century where, in Hegel, for example, the new theme is the state against civil society. The Federalists are particularly occupied with using the new “science of politics” to encourage and develop the intertwining of state and civil society. Cf. John Keane, ed., Civil Society and the State (London: Verso, 1988); Ellen Meikins Wood, “The Uses and Abuses of ‘Civil Society,’ ” pp. 60–84, in Ralph Miliband, ed., The Socialist Register, 1990 (New York: Monthly Review Press, 1991); and Irving Leonard Markovitz, “Uncivil Society: Capitalism and the State in Africa,” in Nelson Kasfir, ed., Civil Society and Democracy in Africa: Critical Perspectives (London: Frank Cass, 1998), pp. 21–53. Back.
Note 57: Federalist 10, p. 81. Back.
Note 58: Federalist 10, p. 83. Back.
Note 59: Federalist 37, p. 227. Back.
Note 60: Federalist 37, p. 228. Back.
Note 61: Federalist 47, p. 301. Here again is an instance where poor Montesquieu did not “get it.” Madison declares: “From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying ‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,’ or, ‘if the power of judging be not separated from the legislative and executive powers,’ he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than his, that 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.” Ibid, p. 302. Back.
Note 62: Federalist 48, p. 313. Back.
Note 63: Federalist 51, p. 320. Back.
Note 64: Federalist 51, p. 321. Back.
Note 65: Federalist 51, p. 322. Federalism, as provided by the Constitution, provides a particularly effective institutional check on power: “In the compound republic of America, 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. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself” (Federalist 51, p. 323). Back.
Note 66: Federalist 51, p. 324. Back.
Note 67: Federalist 51, pp. 324–25. Back.
Note 68: For statistics on income distribution, see, e. g., Donald L. Barlett and James B. Steele, America What Went Wrong (Kansas City: Andrews and McMeel, 1992), p. xi and passim. Back.
Note 69: Rustow, p. 354. Back.
Email this citation