Extensions Summer 2014

A Journal of the Carl Albert Congressional Research and Studies Center

Summer 2014

What Would James Madison Think?

The Carl Albert Congressional Research and Studies Center Established in 1979 by the Oklahoma Regents for Higher Education and the Board of Regents of the University of Oklahoma, the Carl Albert Congressional Research and Studies Center is a nonpartisan institution devoted to instruction and scholarship related to the United States Congress. The mission of the Center is defined broadly in terms of academic inquiry into the history, structure, process, personnel, and policies of the Congress, and the relationship between the Congress and other agencies and actors in the American political system. In the most general sense, the Center is concerned with the problems of modern representative democracy, as exemplified by the Congress.

In pursuit of this goal, the Carl Albert Center performs four principal functions. The first is the development of academic programs in congressional studies at both the graduate and undergraduate levels, which are sponsored in cooperation with the University of Oklahoma’s Department of Political Science. At the graduate level the Center offers a four-year, specialized fellowship program leading toward the doctoral degree. Each Fellow receives a fully financed program of study. At the undergraduate level the Center sponsors a research fellowship program designed to foster collaborative research between faculty and undergraduates.

Second, believing that professional research is the foundation upon which its academic programs rest, the Center promotes original research by faculty members and students into various aspects of politics and the Congress. The Center encourages

publication and provides its faculty and students with institutional and financial support to travel for research purposes and to present research findings at professional conferences.

The third function of the Center is the development of resource materials related to the Congress. The Center’s Congressional Archives, which are among the largest in the country, include the papers of more than fifty former members of Congress.

Such prominent Oklahomans as Speaker Albert, Dewey F. Bartlett, Page Belcher, Mickey Edwards, Glenn English, Robert S. Kerr, Sr., Fred Harris, Steve Largent, Dave McCurdy, Mike Monroney, Tom Steed, Mike Synar, and J. C. Watts have donated their papers to the Center along with such distinguished non-Oklahomans as Dick Armey, Helen Gahagan Douglas, and Carl Hatch.

Fourth, the Center actively strives to promote a wider understanding and appreciation of the Congress through various civic education programs. The Center sponsors conferences, speakers, television appearances, and the biennial Julian J. Rothbaum Distinguished Lecture in Representative Government. The Center also publishes Extensions, a journal which focuses on issues related to the Congress.

Taken together, these diverse aspects of the Carl Albert Center constitute a unique resource for scholarship and research related to the United States Congress.

Summer 2014

extensions

A Journal of the Carl Albert Congressional Research and Studies Center

Contents

Director and Curator Cindy Simon Rosenthal Associate Director Michael H. Crespin

Editor’s Introduction

Regents’ Professor Ronald M. Peters, Jr.

What Would James Madison Think? . . . . . . . . . . 2

Ronald M. Peters, Jr.

Managing Editor and Assistant to the Director LaDonna Sullivan Assistant Director for N.E.W. Leadership Lauren Schueler Archivist Robert Lay Bailey Hoffner National Advisory Board David Albert Richard A. Baker David L. Boren Richard F. Fenno, Jr. Joseph S. Foote Jess Hay Joel Jankowsky Thomas J. Kenan Dave McCurdy Frank H. Mackaman Thomas E. Mann Chuck Neal Michael L. Reed Catherine E. Rudder James C. Wright, Jr.

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Special Orders

James Madison on the Vices of the American Political System Today . . . . . . . . . . . . . . . . . . . . 5 Jeff Broadwater

Does James Madison Still Rule America?. . . . . . 10 William F. Connelly, Jr.

Majorities and Madisonian Paradoxes . . . . . . . . 16 Greg Weiner

For the Record

News from the Center . . . . . . . . . . . . . . . . . . . 21

LaDonna Sullivan

ON THE COVER: Scene at the Signing of the Constitution of the United States, a 1940 oil painting by American artist Howard Chandler Christy, is currently displayed in the House of Representatives wing of the U.S. Capitol building.

Extensions is a copyrighted publication of the Carl Albert Congressional Research and Studies Center. It is published twice each year and distributed free of charge. To receive copies of Extensions, or to obtain permission to reprint, please contact the managing editor, LaDonna Sullivan, at (405) 325-6372 or e-mail to ljsullivan@ou.edu.

Extensions may also be viewed on the Center’s web site at www. ou.edu/carlalbertcenter.

Hon. Tom Cole 4th District, Oklahoma ex officio

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Editor’s Introduction

What Would James Madison Think?

Ronald M. Peters, Jr. Justice Scalia: I’m concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. . . . Are we to sit day by day to decide what else will be made an exception from the First Amendment?

Justice Alito: Well, I think what Justice Scalia wants to know is what James Madison thought about video games. (Laughter).1 It is hard to know just what James Madison might have thought about many aspects of the modern world, including depictions of violence in video games. Yet Madison’s thought tugs persistently at those among us who spend time thinking about the political system that owes so much to it. This appears to be true for distinguished jurists as well as for college professors who, like myself, are asked to instruct students in the fundamental elements of the American political system.

Amid ongoing concerns about the dysfunctional state of our political affairs and the inability of our political institutions to address the most pressing needs on the national agenda, it is unsurprising that the fundamentals of our constitutional order would be called into question, as they now often are. Critics on the left typically argue that the constitutional system is simply not up to the challenges of modern society. They want a more activist government to be set free of constitutional shackles that inhibit its capacity to address problems such as health care, education, infrastructure, climate change, immigration, and so forth. For them, Madison’s Constitution sometimes appears as a straightjacket. Critics on the right typically argue that our problems arise from too much government intervention in the private sector. They suggest that the political system has already strayed too far from its constitutional moorings, and call for a return to constitutional fundamentals in order to restrain the role of government. To them, Madison’s Constitution appears as a bulwark against governmental excess.

These competing perspectives on the political system both undergird and reflect the polarization that has come to characterize American politics today. This competition of ideas is perhaps one reason for the emergence of a wide and deep literature exploring the thought of James Madison and the character of the constitutional regime of which he was a major architect, explicator, and implementer. This issue of Extensions offers articles by three authors of recent books about James Madison, each responding to the question, “what might James 2

Madison think about the operation of the American political system today?” Recognizing that the question calls for some guesswork, each author offers interesting insights into Madison’s thinking as it might pertain to contemporary concerns.

Jeff Broadwater draws on his recent biography, James Madison: A Son of Virginia and a Founder of the Nation (University of North Carolina Press, 2012), to identify three of Madison’s foundational concerns that are relevant to political debate today: the separation of church and state, excessive executive power (especially in the name of national security), and the social and economic foundations of republican government. Madison’s concern for religious freedom was co-extensive with his insistence on the separation of church and state. Today his Memorial and Remonstrance against Religious Assessments is accurately heralded for its insistence on the freedom of conscience. But it was, after all, a remonstrance against religious assessments; that is, Madison was against state support of religious institutions and their practices. Broadwater doubts that Madison would approve of even the symbolic reflection of religion in public policy (as, for example, national days of prayer and observance), perhaps much less the tax preferences that religious institutions may now claim under public law.

“M

ADISON WAS, LIKE ALL

AMERICANS, HORRIFIED BY THE VAST INEQUALITIES PRODUCED BY THE EUROPEAN ARISTOCRACIES.

”

Madison’s attitude toward executive power is among the examples some point to in alleging his inconsistency over time.

During the founding years he argued for a strong executive as necessary to a well-governed republic. The state executives were too weak, and there was no effective national executive under the Articles of Confederation. Yet, in the 1790s, Madison and Thomas Jefferson became the leading opponents of Secretary of the Treasury Alexander Hamilton and his expansive view of presidential power. Broadwater notes Madison’s ongoing concern Summer 2014

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“A

SYSTEM DESIGNED TO PREVENT MAJORITY TYRANNY

HAS OFTEN PRODUCED MINORITY RULE, AS SPECIAL INTERESTS

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SEIZE THE INITIATIVE FROM DIFFUSE MAJORITIES.

about an executive empowered by a standing military establishment. Likewise, Madison thought that the Congress (including the House of Representatives) had responsibilities in the conduct of foreign policy. These concerns are surely relevant to the conduct of national security and foreign policy by presidents today.

The social and economic foundations of republican government were of great concern to Madison. Inequality was of course known to him and in Federalist No. 10 and elsewhere he associates inequality with the right to acquire private property based on individual capacities.

But Madison was, like all Americans, horrified by the vast inequalities produced by the European aristocracies. George Washington was among the wealthiest Americans of the founding generation, and his fortune has been estimated at around $525 million in today’s dollars.2 This is a tidy sum, but pales against the levels of wealth obtained by the richest Americans today, some of whose fortunes range in the tens of billions of dollars.

That much of this wealth has accrued to financiers (stock-jobbers in Madison’s lexicon) would certainly arouse his concern about the viability of republican government in a society in which the majority of the wealth is held by a small minority of the population.

Bill Connelly’s article extends the analysis offered in his book James Madison Rules America: The Constitutional Origins of Congressional Partisanship (Rowman & Littlefield, 2011). Viewing Madison as primarily a structural thinker, Connelly argues that we all live according to the rules of the game as Madison wrote them.

The Constitution creates a political system that requires complex majority formation across institutions. At times this produces deadlock as the separated institutions are controlled by opposing political parties; less frequently, there are extensions

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opportunities for expansive policymaking when the voters give control of all elected branches to a single party. Madison’s constitution creates a conundrum by empowering both majorities and minorities.

The constraints on collective action that the Constitution imposes have often frustrated progressives who want to use the tools of government to promote their social purposes. But progressive efforts to make the political system more efficient or more democratic (i.e. less Madisonian), have often produced unanticipated consequences. Connelly cites several examples. One example is the congressional budget process, which was intended as a reassertion of Congress’s power of the purse. Yet the federal government only began running huge annual deficits after the budget process was implemented, and in recent years it has provided an arena for partisan stalemate. Another example is the rise of primary elections as the predominant method of selecting candidates for office.

This was a progressive reform designed to empower voters at the expense of party bosses. The result has been the capture of the nominating process by more ideologically extreme base voters in each party, thus creating the conditions for partisan polarization in the government.

The instinct driving these and other reforms that Connelly discusses is toward a more open, accountable,

efficient, and democratic government.

The consequences have often proven otherwise, in Connelly’s estimation.

Whereas Broadwater finds in Madison’s thought some core commitments that bear upon political controversies today, Connelly sees Madison’s Constitution as a set of complex institutional arrangements that aim to corral the powers of government. In contrast to both of these perspectives, Greg Weiner’s James Madison is a persistent adherent to the principle of majority rule.

Of course Madison is perhaps best known as a critic of majority tyranny. In a letter written to James Monroe in 1786, Madison held that “There is no maxim in my opinion which is more liable to be misapplied and which therefore more needs elucidation than the current one that the majority is the political standard of right and wrong.”3 And, in Federalist No. 10 and other writings and speeches, Madison developed his theory of the extended sphere of republican government as a remedy to the problem of majority tyranny. Still, Weiner contends, there is no evidence that Madison ever questioned the necessity of majority rule as the bedrock principle of republicanism; when final decisions must be made, majorities should make them. Madison’s strategy, however, was to ensure that voting majorities would be unable to act quickly.

Weiner argues that Madison’s purpose was not to deny majorities the right to rule (whether they were right or wrong), but instead to delay the process of majority formation so that reason might prevail over passion. This increases the odds that the majority will rule rightly.

The complex constitutional machinery, which Connelly describes as creating a conundrum, has in Weiner’s view produced a set of paradoxes. A system designed to avoid reliance on the virtue of its leaders now relies more on their virtue than ever before. Only virtuous leaders

“S

TILL, WEINER CONTENDS, THERE IS NO EVIDENCE THAT

MADISON EVER QUESTIONED THE NECESSITY OF MAJORITY RULE AS THE BEDROCK PRINCIPLE OF REPUBLICANISM; WHEN FINAL DECISIONS MUST BE MADE, MAJORITIES SHOULD MAKE THEM.

” 3

can transcend the narrow partisanship that paralyzes our politics. A system designed to prevent majority tyranny has often produced minority rule, as special interests seize the initiative from diffuse majorities. A system aimed at first empowering, then controlling legislative power, has succumbed to executive power.

And all of these developments have been affirmed by national majorities over a long period of time, lending them constitutional credibility as Madison would have understood it.

These three students of Madison’s political thought provide windows on the range of interpretations that Madison’s deep understanding, extensive writings, and lengthy public career invite. They are reflective of an ongoing interpretive discourse, one might even say a competition, to get Madison right.

Should we see in Madison an advocate of limited government and individual rights?

If so, is this traceable to an underlying libertarianism or to a specific class interest? Should we see Madison as an advocate of majority rule, tempered by time or otherwise? If so, did this represent for Madison simply a necessary decision rule incident to republican government, or a belief that majorities have an inherent right to prevail. But if the latter, then of whom does the majority consist in a society in which many less than a majority were allowed to vote?

Was Madison primarily a defender of property rights? What did he understand by property rights in a society in which millions were held in slavery? What might he think of a society in which a vastly disproportionate amount of wealth is held by a small minority of people? Did Madison have a set of principles to which he consistently adhered over time? If so, how can we understand his policy shifts on issues like the national bank? And just what was his view of constitutional evolution? How might that apply to policy issues today?

Our articles present Madison as variously committed to certain fundamental governmental principles (such as the separation of church and state), to a politics of institutional design, and to an underlying republicanism grounded on majority rule. There is ample evidence to support each of these interpretations of Madison, and viewed through these prisms, we gain insight into Madison’s thought and its applicability to 4

“I

F WE WANT TO KNOW WHAT MADISON THOUGHT,

WE ALWAYS HAVE TO ASK, WHAT PROBLEM WAS HE

”

TRYING TO FIX?

the current state of the political system he did so much to create.

In talking about Madison to my students, I often stress another dimension of Madison’s thought and character: his penchant for analyzing and solving problems. If we want to know what Madison thought, we always have to ask, what problem was he trying to fix? His contributions to The Federalist Papers, his statements in the Constitutional Convention, his newspaper essays, and the analyses offered in his voluminous correspondence all reveal a pragmatic mind at work. And pragmatic minds change when the circumstances drive new conclusions.

In confronting problems, Madison typically calls for new thinking or rethinking. He is the enemy of received opinion when it contradicts the facts on the ground. This is most famously demonstrated in his rejection of the “celebrated” Montesquieu’s notion that republican government could only work in a small polity. But in Madison’s Vices of the Political System of the United States memorandum, in his letters to Jefferson and others, in his speeches in the Constitutional Convention, and elsewhere, he analyzes a myriad of practical problems that demand institutional solutions. Even his reluctance to advance a constitutional bill of rights reflected this mind set; he saw it as a solution in search of a problem that did not exist. This is one way to think about his putative shifts in position over his long career. When the problems changed, he changed.

Conceiving of Madison as first and foremost a pragmatic problem solver does have a contemporary application. It is not very hard to identify major problems confronting the country, and I noted above that critics of the Madisonian system tend to fault it for its inability to address them. Their opponents appeal to an impression of Madison’s views to lend constitutional authority to their resistance

to liberal solutions to these problems. If James Madison were here to assess these controversies and the perspectives on his system to which they give rise, I think that the first question he would ask is, “what problem are you trying to solve?”

And then he would figure out how to fix it. The United States Constitution was designed as a response to a set of problems that badly needed fixing. It would seem odd to Madison if that same Constitution has become a barrier to fixing the problems of our day.

Notes 1. Schwarzenegger v. Entertainment Merchants Association, No. 08-1448, Oral Argument, November 2, 2010, 16-17.

When the opinion in this case came down, Governor Schwarzenegger had been replaced by Governor Jerry Brown.

The opinion is Brown v. Entertainment Merchants Association, 556 F. 3d 950 accessed at http://www.law.cornell.edu/ supct/html/08-1448.ZO.html. Justice Scalia responded by saying that he was interested in Madison’s views on depictions of violence and not his views on video games. But he did want to know what James Madison might have thought.

2. “Net worth of U.S. Presidents: George Washington Still Tops,” Encyclopædia Britannica Blog (http:// www.britannica.com/blogs/2010/05/networth-of-us-presidents-george-washingtonstill-tops/).

3. “From James Madison to James Monroe, 5 October 1786,” Founders Online, National Archives (http:// founders.archives.gov/documents/Madison/01-09-02-0054.)

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James Madison on The Vices of the American Political System Today Jeff Broadwater Barton College

W

hat would James Madison think of contemporary American politics?

Channeling Madison is tricky business. His world was radically different from ours. Many of the issues that concern us – from gay marriage to federal health care policy – would be utterly foreign to him, and his own views were not static.

The leading congressional opponent of the creation of the First Bank of the United States in the early 1790s, he signed legislation as president chartering the Second Bank of the United States in 1816. He acknowledged later there was sometimes “an evidence of the Public Judgment, necessarily superseding individual opinions.”1 Who is to say how much his thinking might change in response to the lessons of history and the demands of a global, post-industrial, multi-cultural society?

He would surely be staggered, at first glance, by the size of the federal government and the magnitude of the federal debt. Madison virtually invented the idea of “factions” in American politics, but his theorizing probably would not have prepared him for the influence of special interest money, nor would he easily abide the clout of high finance. Stock-jobbers, as they called financial speculators, were the bête noir of eighteenth-century republicans.

In April 1787, as he prepared for the federal Constitutional Convention, Madison made his case against the political status quo in a memorandum he titled, Vices of the Political System of the United States. The Vices essay bemoaned the impotence of Congress under the Articles of Confederation, but it aimed considerable vitriol at the “multiplicity,” “mutability,” and “injustice” of state laws. The state assemblies, he fumed, had brought “into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”2 Madison could surely pen a similar indictment of contemporary politics. What precisely would draw his ire is a little less obvious, but three issues were hardy perennials in his political thought: the dangers of mixing church and state, the abuse of executive power in the interest of national security, and the need to nurture republicanism’s social and economic foundations.

Among the first issues to attract his attention was colonial Virginia’s practice of imprisoning Baptist ministers for preaching without a license.3 As a delegate to the 1776 convention that drafted a constitution for the newly independent state of Virginia, he supported the strict separation of church and state. In 1785, Madison helped defeat Patrick Henry’s proposal to provide state aid to all Christian denominations. The following year, he steered to passage Thomas Jefferson’s Bill for Religious Freedom.

Madison considered state efforts to support religion to be invariably discriminatory; some group was always left out. He believed too close an alliance – or too much accommodation, to use the contemporary vernacular – between state and church would corrupt both institutions. United they would become oppressive. “Conscience,” he said, “is the most sacred of all property,” and in step with other eighteenth-century thinkers, he did not believe religious and political liberty could be separated. extensions

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Jeff Broadwater is a professor of history at Barton College in Wilson, North Carolina. His publications include James Madison: A Son of Virginia and a Founder of the Nation (Chapel Hill: University of North Carolina Press, 2012), which received the Ragan Old North State Award from the North Carolina Historical and Literary Association, and George Mason, Forgotten Founder (Chapel Hill: University of North Carolina Press, 2006), which received the Virginia Historical Society’s Richard Slatten Award. Professor Broadwater is a past president of the North Carolina Association of Historians and a member of the editorial advisory board of the Virginia Magazine of History and Biography. He can be reached at ojbroadwater@barton.edu.

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White House Historical Association (White House Collection)

He would have little patience for federal support of faith-based initiatives.

As president he vetoed legislation incorporating an Episcopal church in the District of Columbia. He thought its provisions regarding church government went beyond the jurisdiction of Congress, but he also objected to language authorizing the church to help the poor and to educate their children. Such charitable work did not require the imprimatur of the state, and Madison did not want to set “a precedent for giving religious societies as such, a legal agency in carrying into effect a public and civil duty.”

He sometimes took what by our standards would be extreme positions on the separation of church and state.

President Madison signed legislation authorizing Sunday mail delivery to avoid giving preference to one faith’s holy day over another’s. He did not think public money should go to pay congressional and military chaplains. If members of Congress needed scriptural guidance, they could pay for it themselves. In retirement, he was clearly sheepish about a handful of nonsectarian days of prayer and fasting he had proclaimed during the War of 1812; the precedent had been set before he became president, and during wartime the political pressure to pray seemed irresistible. He suggested limits be placed on the amount of property churches could own; he worried about the wealth they could accumulate over time and the power that would come with it. He also defended the newly-founded University of Virginia’s decision not to hire a professor of religion. Appointing a single professor would privilege that professor’s faith.

Attempting to represent other faiths would create “an arena of Theological Gladiators.”

Portrait of President James Madison by John Vanderlyn, 1816.

In contrast with his views on statesanctioned religion, Madison, early in his career, worried much less about the exercise or abuse of executive power. He had long complained that the governor created by the Virginia constitution of 1776 lacked the necessary vigor and independence, but as late as 1785, he had no definite ideas how to fix the office.

The Virginia Plan of 1787 said almost nothing about the duties of the president, and over the course of the Philadelphia convention Madison changed his mind about how the position should be filled.

When the convention began, he clearly expected little from a national chief executive, doubting, among other things, whether the president would have the political will to veto an act of Congress.

“M

ADISON CONSIDERED STATE EFFORTS TO SUPPORT

RELIGION TO BE INVARIABLY DISCRIMINATORY; SOME GROUP WAS ALWAYS LEFT OUT. HE BELIEVED TOO CLOSE AN ALLIANCE – OR TOO MUCH ACCOMMODATION, TO USE THE CONTEMPORARY VERNACULAR – BETWEEN STATE AND CHURCH WOULD CORRUPT BOTH INSTITUTIONS.

6

”

After the Great Compromise created, in Madison’s mind, a Senate that did not fairly represent the American people, he began trying to shift power from the upper house of the national legislature to the president. The convention, to cite two examples, expanded the executive’s power to make appointments and to negotiate treaties. In The Federalist and during the first session of the new Congress, Madison minimized the possibility an American president could threaten the people’s liberties. When he introduced the amendments that eventually became the Bill of Rights, he proposed they limit Congress, and to a lesser extent the states, but he never considered applying additional restrictions on the prerogatives of the president.

Madison, however, foresaw a few situations in which a republican executive could become overbearing. At the federal Constitutional Convention, he had warned his fellow delegates that if the Articles of Confederation collapsed before a new central government could be created, the states would have to assume responsibility for their own defense.

The smaller states, fearful of their larger neighbors, would create standing armies, and in the interest of state security, vest broad powers in their governors.

“A standing military force, with an overgrown Executive will not long be safe Summer 2014

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“M

ADISON WANTED TO KEEP A TIGHT REIN ON THE PRESIDENT’S ABILITY TO MAKE FOREIGN

POLICY BECAUSE HE FEARED THE EXECUTIVE BRANCH OF ANY GOVERNMENT WAS MORE PRONE TO GO TO WAR THAN THE LEGISLATURE, AND THAT WAR WAS THE ACHILLES’ HEEL OF REPUBLICAN GOVERNMENTS.

companions to liberty.” He went on: “The means of defense ag[ain]st foreign danger, have always been the instruments of tyranny at home....Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”4 Events at the national level in the 1790s raised new fears about the abuse of executive power. Madison argued that Secretary of the Treasury Alexander Hamilton’s plans for the new federal government, including his proposal for the creation of the Bank of the United States, would expand congressional jurisdiction to unmanageable proportions.

As Congress proved inadequate to its duties, authority would inevitably shift to the executive, creating an imperial presidency.

Presidential assertiveness in foreign policy especially troubled him. George Washington’s Neutrality Proclamation of 1793, asserting the intent of the United States to stay out of the ongoing war between England and France was acceptable to Madison as a statement of fact since America was not at war, but not as a declaration of policy, which he thought would infringe on the right of the Senate to approve treaties. Madison fumed when the administration refused to provide the House of Representatives with correspondence pertaining to the negotiation of the controversial Jay Treaty with England.

Madison wanted to keep a tight rein on the president’s ability to make foreign policy because he feared the executive branch of any government was more prone to go to war than the legislature and that war was the Achilles’ heel of republican governments. “Of all the enemies of public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of extensions

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every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”

Military conflict also expanded executive power to dangerous extremes. “No nation,” Madison wrote, “could preserve its freedom in the midst of continual warfare.” The XYZ Affair and the QuasiWar with France during the presidency of John Adams only exacerbated his fears. “The Constitution supposes, what the History of all Govts. demonstrates, that the Ex[ecutive] is the branch…most interested in war, & most prone to it.”5 When he assumed the presidency in 1809, Madison promised to keep the regular army small and to respect civil liberties. Ironically, this most pacifist of presidents would lead the nation into the War of 1812, but he honored his commitment to individual rights and presidential restraint. He endured open insubordination from lesser officials and almost treasonable opposition from his political enemies. Partly as a result, the American war effort often flagged, most notably when a British raiding party burned most of the government buildings in Washington, D.C. in August 1814. Historians have, accordingly, rated Madison a mediocre commander-in-chief, but most of his contemporaries, putting a higher value on the preservation of republican institutions, thought he performed admirably.

Madison, however, would not have expected every president to show such restraint, and he could have predicted that America’s endless series of twentieth and twenty-first-century wars would have inflated presidential power and eroded civil liberties.

He might also lament our relative neglect of a more esoteric topic.

Eighteenth and early nineteenth-century political theorists gave considerable thought to the social and economic basis of republican government. It was not the inevitable result of human virtue unshackled from the confines of monarchy. In the spring of 1786, as a series of crises convinced him of the need to reform the Articles of Confederation, Madison recognized the connection between republicanism and the broader society. “Most of our political evils,” he wrote Thomas Jefferson, “may be traced up to our commercial ones, as most of our moral may be to our political.”6 Jefferson had famously written in his Notes on the State of Virginia (1785) that “[t]hose who labour in the earth are the chosen people of God, if ever he had a chosen people….” Madison agreed. Writing in the National Gazette in March 1792, he argued that yeoman farmers were, of all people, “the most truly independent and happy.” They were, he added, “the best basis of public liberty, and the strongest bulwark of public safety.” Husbandry promoted good health, virtue, and to use an eighteenthcentury term, competency, or economic independence and relative equality, two prerequisites for a republican political order. “[T]he greater the proportion of this class to the whole society,” Madison could conclude, “the more free, the more independent, and the more happy must be the society itself.”7 Industrialized societies, by contrast, especially those that produced luxury goods subject to the whims of fashion, encouraged “the most servile dependence” and created jobs that were “the least desirable in a free state.” In another National Gazette essay, the eighteenth7

century equivalent of an op-ed piece, Madison could point to a petition from some 20,000 English buckle makers beseeching the style-setting Prince of Wales to forego the new fashion of slippers and shoestrings. In industrialized England, “[t]wenty thousand persons are to get or go without their bread, as a wanton youth, may fancy to wear his shoes….”

High finance was not an acceptable alternative; Madison considered financial speculation to be little more than legalized extortion, hence his opposition in the 1790s to Hamilton’s plans to refinance the federal debt, assume the states’ wartime obligations, and create a national bank.8 If Madison’s view of farming seems overly romanticized, he was no romantic.

He believed ordinary people possessed enough virtue to govern themselves, but only within a carefully structured system of checks and balances. His

the productivity that virtue required.

As planters themselves, they assumed American farmers would produce crops for domestic and foreign consumers, an assumption with implications for public policy. An economy devoted to commercial agriculture would require access to overseas markets and manufactured goods, which made Madison a champion of free trade, and it would require more and more land for an ever-increasing army of farmers, which made him a friend to western expansion.10 In another nod to reality, Madison conceded that even a virtuous republican government could not eliminate all society’s ills; it might even aggravate a few of them. Republicanism, he thought, would promote a more equitable distribution of land; recall Jefferson’s campaign against entail and primogeniture in Virginia. At the same time, he predicted America would have

“W

ATCHING THE PANIC OF 1819 UNFOLD AFTER HE

LEFT THE WHITE HOUSE, MADISON BEGAN TO RECONSIDER

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HIS COMMITMENT TO AN AGRARIAN ECONOMY.

memorable line in Federalist No. 51, “If men were angels no government would be necessary,” exemplified his skeptical view of human nature. Note Federalist No. 49: “a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato;” and Federalist No. 55: “[h]ad every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

Americans could not escape their human frailties. As he wrote one correspondent during the debate over the ratification of the Constitution, “[t]he Americans are an enlightened and a liberal people, compared with other nations, but they are not all philosophers.”9 In extolling the virtues of the yeoman farmer, Madison and Jefferson were not thinking of simple subsistence agriculture.

Only commercial farming could spur 8

less need for the superfluous occupations – professional soldiers, servants, courtiers, and dealers in all things frivolous – that were subsidized by European monarchies.

Watching the Panic of 1819 unfold after he left the White House, Madison began to reconsider his commitment to an agrarian economy. Markets for commodities seemed finite, but the items “merely of fancy and fashion” that a sophisticated industrial economy could produce satisfied “wants of a nature altogether indefinite.” He also recognized that as the American economy modernized and as the population grew, more Americans would be drawn to manufacturing and fewer would be landowners.11 Relatively fewer independent farmers meant relatively less virtue, and presumably more class conflict. In

his much celebrated Federalist No. 10, which argued power could prudently be conveyed to the government of an “extended republic” because it would encompass a multitude of factions that could check one another, Madison also explained the sources of faction. They could arise from “the most frivolous and fanciful distinctions,” but “the most common and durable source of faction, has been the various and unequal distribution of property.” And it was “natural to most political societies,” he would write later, that economic divisions would produce a political party “more partial to the opulent than to the other classes of society.”12 Economic modernization, in short, would undermine civic virtue and create a landless proletariat with a diminished commitment to property rights while an economic elite sought to dominate the political system. What was a republican philosopher to do? Government could avoid giving unfair advantages to members of the commercial classes.

“That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens…free use of their faculties, and free choice to their occupations….” Yet Madison seemed to see citizens without property as a greater threat. Throughout his career, he defended property rights without reservation, endorsing at one point, for example, North Carolina’s requirement that voters in state senate races be landowners. In their contest with the upper classes, moreover, the middling sort and the lower orders would have the numerical advantage.13 While Madison could accept institutional arrangements intended to provide specific safeguards for property rights, he did not believe a republican government could long endure if only a minority of white, male citizens enjoyed the right to vote. He apparently came to believe that, in a more thickly populated America, public schools could replace the family farm as the nation’s primary source of civic virtue. “Learned Institutions ought to be favorite objects with every free people,” he said in 1822, praising Kentucky’s “liberal appropriations” for its public schools. “They throw that light over the public mind which is the best security against crafty & dangerous encroachments on the public liberty.”

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“T

ODAY, WE DECRY POVERTY, ECONOMIC INEQUALITY,

AND THE MEDIOCRE ACADEMIC PERFORMANCE OF AMERICAN STUDENTS, BUT WE TEND TO IGNORE THEIR IMPACT ON THE QUALITY OF THE NATION’S POLITICAL LIFE.

As president, Madison had called for the creation of a national university in the District of Columbia. In retirement, he worked with Jefferson to establish the University of Virginia where, he believed, “the most effectual safeguard against heretical intrusions into the School of Politics will be an Able & Orthodox Professor….” 14 Today, we decry poverty, economic inequality, and the mediocre academic performance of American students, but we tend to ignore their impact on the quality of the nation’s political life. Modern conservatives will dismiss questions about the social impact of inequality with cries of class warfare.

Contemporary liberals take a Mr. Rodgers approach to suffrage. Much like the host of the children’s television show who told everyone they were special just for being themselves, they assume citizenship itself qualifies a person to vote and hold office. Yet the ideas of individual economic competency, class divisions, and informed public opinion were critical parts of Madison’s political thought. He would likely be appalled by the prevailing emphasis on public education as a form of job training, at the expense of preparing students for the duties of citizenship. A nation, he would tell us, that ignores the social basis of republican government, cannot expect to sustain one.

Ultimately, however, Madison might counsel us not to be too hard on ourselves. His last public statement, the brief Advice to My Country (1834), expressed modest, if fundamental, goals. Writing in the aftermath of the Nullification Crisis, he said, “[t]he advice nearest to my heart and deepest in my conviction is that the Union of the States be cherished and perpetuated.”15 He would be gratified to see that not only has the republic survived, but that in many ways extensions

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it has expanded the scope of American liberty. When Madison introduced in the House of Representatives the package of amendments that became the Bill of Rights, he included provisions to protect freedom of religion, freedom of the press, and the right to trial by jury in criminal cases from state action, but those safeguards died in the Senate. He would undoubtedly feel vindicated by twentiethcentury Supreme Court decisions interpreting the Fourteenth Amendment to protect most basic individual rights from the states.

A veteran of the partisan conflicts of the 1790s, Madison might feel at home in today’s toxic political climate, and if modern Washington’s gridlock might frustrate him, he never envisioned a federal government that could act with excessive dispatch. Given our many departures from Madisonian republicanism, I think he would happily conclude, with satisfaction and a touch of irony, that the system works better than we have any right to expect.

Notes 1. James Madison (JM) to Nicholas Trist, December 1831, in Gaillard Hunt, ed., The Writings of James Madison (WJM), 9 vols. (New York: G.P. Putnam’s Sons, 1896-1903), 9:471-77.

2. “Vices of the Political System of the United States,” April 1787, in Jack Rakove, ed., James Madison, Writings (JMW) (New York: Library of America, 1999), 69-80.

3. Madison’s views on issues of church and state are taken from Jeff Broadwater, James Madison: A Son of Virginia and a Founder of the Nation (Chapel Hill: University of North Carolina Press, 2012), 4-9, 20-27.

4. Speech of 29 June 1787, JMW, 116.

5. “Political Observations,” 20 April 1795, in William T. Hutchinson and William M.E. Rachel, eds., The Papers of James Madison (PJM), 17 vols.

(Chicago: University of Chicago Press; Charlottesville: University of Virginia Press, 1962-91), 15: 511-34; JM to Thomas Jefferson, 2 April 1797, JMW, 586.

6. JM to Thomas Jefferson, 18 March 1786, PJM, 8:500-504.

7. “Republican Distribution of Citizens,” National Gazette, 5 March 1792, JMW, 511-13.

8. “Fashion,” National Gazette, 22 March 1792, JMW, 513-14. See, Broadwater, James Madison, 89-90.

9. JM to Philip Mazzei, 8 October 1788, PJM, 11: 278-79.

10. The seminal explanation of the nexus of republicanism, free trade, and expansionism is Drew McCoy, The Elusive Republic: Political Economy in Jeffersonian America (New York: W.W. Norton, 1980).

11. Broadwater, James Madison, 35-36,186-87.

12. “A Candid State of Parties,” National Gazette, 26 September 1792, JMW, 530-32.

13. “Property,” National Gazette, 29 March 1792, JMW, 515-17.

14. JM to William T. Barry, 4 August 1822, JMW, 790-94; JM to Thomas Jefferson, 8 February 1825, ibid., 807-10; Drew McCoy, The Last of the Fathers: James Madison and the Republican Legacy (New York: Cambridge University Press, 1989), 179-202. On the importance of informed public opinion to Madison, see also Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government (New York: Cambridge University Press, 2009).

15. JMW, 866.

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Does James Madison Still Rule America?

William F. Connelly, Jr. Washington and Lee University

Does the Constitution govern?

Or are Congress and the Constitution today broken?

T

wo long-serving and exceptionally accomplished Democratic House members, John Dingell and Henry Waxman, who between them share a century of Hill experience, disagreed as they announced their retirements recently, just as they had often differed during their long stormy tenure together. Dingell denounced dysfunction in Congress. Waxman denied Congress is broken, noting it has always been hard to pass legislation. Who is right?

Definitions of dysfunction today commonly include partisanship, gridlock, and the permanent campaign with its purported all-politics-all-the-time failure to address the challenges of good public policy. Do self-interest, ambition, special interest factionalism, and partisanship constitute or corrupt our politics? In the Constitution and Federalist No. 10, Madison unleashes “the spirit of party and faction in the necessary and ordinary operations of government.” For Madison, partisanship and factionalism constitute our politics. Madison’s Anti-Federalist critics, then and now, insist, to the contrary, that partisanship, gridlock, the permanent campaign, along with the lack of accountability in our complex constitutional system, corrupt our politics. Woodrow Wilson, Madison’s greatest opponent across two centuries, and neo-Wilsonian reformers ever since echo this Anti-Federalist critique.

Should we blame (or credit?) Madison for the seeming dysfunction in our politics?

Perhaps we find our politics wanting because we are judging our constitutional system by a false Anti-Federalist or Wilsonian standard. Are we applying the false standard of the movie Mr. Smith Goes to Washington in finding our politics dysfunctional?

Compared to Jimmy Stewart’s “Jefferson Smith” character – an idealized, statesmanlike, Jeffersonian-everyman, citizen legislator – today’s real world legislators seem imperfect. Today members of Congress appear, in the public mind, more like the movie’s fallen silver knight, Senator Paine (Claude Rains), or worse, like Kevin Spacey’s Frank Underwood in the contemporary drama series House of Cards. Our idealized Jeffersonian aspirations or Anti-Federalist expectation of public-spirited legislators makes our self-interested and ambitious politicians seem lacking by contrast. Too often, practice falls short of theory, our institutions fall short of our ideals, especially if those ideals are, in fact, Anti-Federalist, Jeffersonian or Wilsonian ideals which fail to embrace the realism of Madison’s institutional structure.

Like an Anti-Federalist, Jimmy Stewart’s Jefferson Smith decries Madisonian institutions premised on the unleashing of self-interest, ambition, and “the spirit of party and faction.” Senator Smith insists “the rules are nothing without virtuous men,” and yet the rules – in particular the filibuster – are critical to his ultimate success in getting the word out to the American people. Jefferson Smith’s sidekick, Clarissa Saunders, knows the rules, including the filibuster (which the movie appropriately 10

William F. Connelly, Jr. is the John K. Boardman Politics Professor at Washington and Lee University. He previously served as an American Political Science Association Congressional Fellow, a guest scholar at the Brookings Institution, and a guest scholar at the Center for the Constitution at James Madison’s Montpelier. In 2007 Professor Connelly received the Virginia Council of Higher Education Outstanding Faculty Award. His most recent book is titled James Madison Rules America: The Constitutional Origins of Congressional Partisanship (Rowman & Littlefield, 2010).

Professor Connelly’s email address is connellyw@ wlu.edu.

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ties to the American liberal tradition of free speech). The filibuster ultimately empowers Jimmy Stewart’s citizen legislator to do an end run around the special interests, party bosses, and media hacks to take his case to the (literally in the movie) “little people.” The silverhaired fallen knight, Senator Paine, recognizes the need for Madisonian republican or representative institutions, “because the people don’t vote half the time.” Apparently we have met the enemy and it is us. Maybe the ultimate defect of our Madisonian institutions is the fact that the few rarely sleep, while “we the people” are rarely fully engaged as publicspirited citizens supporting public-spirited statesmen.

one faction from becoming a majority.

Any purported majority faction, as both the Democratic and Republican parties claim to be, must necessarily be a coalitional, pluralistic faction internally riven by intraparty factionalism.

The proper structure of our constitutional institutions will also manage factionalism within and between parties. The Constitution is “an invitation to struggle,” inviting competition and contentiousness. Madison introduces endless factional conflict and partisan strife into the institutional structure of government – permanent political warfare between factions and parties.

Consequently, we can blame or credit Madison for the excesses of either

“F

ROM THE PERSPECTIVE OF ANTI-FEDERALISTS AND

WILSONIANS, OUR POLITICS TODAY IS DYSFUNCTIONAL. FROM THE PERSPECTIVE OF MADISON IT MAY BE POLITICS

”

AS USUAL – AND IT MAY BE MANAGEABLE.

Taking Madison Seriously To understand whether Congress and the Constitution are broken, we must take Madison seriously, we must think institutionally. The Constitution, after all, provides the rules of the game.

Partisanship and factionalism can indeed corrupt our politics as the Anti-Federalists feared. Yet as Madison understood in both theory and practice, partisanship and factionalism also inevitably constitute our politics. From the perspective of Anti-Federalists and Wilsonians, our politics today is dysfunctional. From the perspective of Madison, it may be politics as usual – and it may be manageable.

Managing the “mischiefs of faction,” especially majority faction, is what Madison’s constitutional institutions are all about; both intraparty and interparty factionalism are mischievous and in need of management. In Federalist No. 10 we find Madison’s formula for good government: “In the extent and proper structure of the Union… we behold a republican remedy for the diseases most incident to republican government.” Both halves of this formula matter.

The extended republic will encompass so many diverse factions as to preclude any extensions

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“pluralism” in the 1950s or red vs. blue “party government” today.

One measure of our failure to appreciate Madison’s constitutional and institutional context is the presumption of “deadlock” in the 1950s and “gridlock” today. As Madison made clear, the Constitution’s separation of powers provides both “stability and energy.” It both limits the abuse of power and provides for the effective use of power. The Constitution provides both limited and effective government. It accomplishes this seemingly paradoxical feat in two ways.

First, by means of a functional separation of powers, the Constitution creates independent and powerful institutions each designed best to fulfill its peculiar function, whether, for example,

to represent, deliberate, legislate, execute, or judge.

Second, the Constitution unleashes the entrepreneurial energy and ferment of ambition, factionalism and partisanship into our politics, creating a pluralist, political, free marketplace exercising the First Amendment freedoms of speech, press, association, and the right to petition government or lobbying.

Critics of our “broken Constitution” may be failing to appreciate the fact that Madison’s Constitution provides for stability and energy, gridlock and productivity. At times it provides for the incremental pluralism of “committee government,” while at other times it allows for the sweeping change of conditional “party government.” Examples of the latter may be seen during the early presidencies of FDR, LBJ, Reagan, and Obama. Madison embraces both bipartisanship and partisanship, both compromise and confrontation.

Government or Opposition?

Critics of our “broken politics” also commonly lament the “permanent campaign,” along with the endless finger pointing and the lack of accountability in our politics. Perhaps the “blame game” must begin with Madison since his complex constitutional system makes accountability impossible and politics permanent. Madison accomplishes this by presenting us with a constitutional conundrum which critics – and the public alike – frequently fail to fully comprehend. The constitutional conundrum confronting and governing both (political) branches, both chambers, both parties at all times is rooted in our institutional and constitutional context and is, in part, responsible for the partisanship, gridlock, permanent campaign, and lack of accountability.

In the British parliamentary system one party is typically the “government” while the other party is the loyal “opposition.”

No such luck in our separation of

“C

RITICS OF OUR “BROKEN CONSTITUTION” MAY BE

FAILING TO APPRECIATE THE FACT THAT MADISON’S CONSTITUTION PROVIDES FOR STABILITY AND ENERGY, GRIDLOCK AND PRODUCTIVITY.

”

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with Boehner during the showdown. The division between Barack Obama and Harry Reid over trade authority provides a third example.

As a consequence of this constitutional conundrum, no one governs, not the Congress or president, House or Senate – and certainly not the parties whether in the majority or the minority. Only the Constitution governs.

At the same time, the Constitution also empowers both the majority and the minority, both Congress and the president, both House and Senate, both Democrats and Republicans by means of the same constitutional dynamic. The constant turmoil of this constitutional calculus promotes energy in the system by empowering all – even individuals.

Candidates for Congress, for example, are often more individual entrepreneurs than party representatives. Likewise, the filibuster, consistent with the Constitution, empowers individuals like the fictional Jefferson Smith to thwart either majority tyranny or special interest corruption. Madison’s constitutional conundrum provides leverage for all by requiring complex majority rule in our compound republic. Majorities, intense minorities, and individuals are all empowered – and limited. But, again, for that same reason, politics is permanent and accountability impossible.

The failure to appreciate this constitutional conundrum confronting both parties causes us to perceive our

politics as more dysfunctional than it really is. Nevertheless, dysfunction does exist. The dysfunction that exists, however, is not all traceable to Madison and the Constitution. A century of Wilsonian-inspired reforms have contributed to dysfunction in our politics.

The failure to appreciate the Madisonian constitutional conundrum and the constitutional/institutional context which gives rise to this strategic conundrum may also have resulted in contextually inappropriate “good government” reforms that, in turn, have contributed to dysfunction in our politics.

Today’s dysfunction may be exacerbated by reforms that are inappropriate (not the same thing as unconstitutional) given the institutional context created by our Constitution. “Good government” reforms may have produced unintended consequences because reformers failed to appreciate our Madisonian constitutional context. Have neo-progressive reforms premised on more “open and democratic” Wilsonian presumptions weakened Madisonian republicanism?

Democratic and Republican Neo-Progressive Good Government Reforms Have Wilsonian-inspired good government reforms in the 1970s and 1990s contributed to dysfunction in our politics?1 We may want to reconsider our century-long infatuation with Wilsonian simple democratic prescriptions; a dose

Associated Press/Columbia

powers system. In our constitutional system, neither party, neither branch, neither chamber is ever simply the “government” or the “opposition.” Both parties, both branches, both chambers are always part of the government and part of the opposition, including under both “divided” and “united” party government, so-called. In this important sense, the Constitution governs both parties, both branches, both chambers.

The Constitution governs more than Democrats or Republicans govern.

The Constitution’s “compound republic” provides leverage for all by promoting complex majority rule. To pass legislation, for example, one needs a majority in the House, a majority in the Senate, plus a majority that has elected a president willing to sign the legislation. Similarly, to elect a president by means of the Electoral College, a party must accumulate enough majorities in enough states to constitute a majority in the Electoral College.

The Constitution empowers intense minorities – Madisonian pluralism – as well as majorities; consequently, politics is permanent and accountability impossible.

Again, Madison confronts us with a constitutional conundrum that vexes both parties in both branches and in both chambers with a strategic dilemma: are they part of the government or part of the opposition? They are, of course, at all times both. The Constitution controls the mischiefs of faction, including partisanship, by means of this constitutional conundrum. Madisonian parties are necessarily coalitional and constantly riven internally by this strategic conundrum which, of course, diffuses majority faction. We have more a “government of parties” than “party government.” Congressional party leaders recognize they must manage the “mischiefs of faction” or be managed by factionalism.

Madison compounds this challenge by confronting party leaders with the impossible-to-answer “government or opposition” dilemma. Parties are regularly divided over strategy, commonly between the “establishment” and “insurgent” wings of the party, between “old guard” and “young turks.” During the 2013 government showdown shutdown, Speaker Boehner was bedeviled by his tea party insurgents. Similarly, House Democrats were happy to have President Obama playing golf, rather than compromising

Actor Jimmy Stewart in a scene from the movie “Mr. Smith Goes to Washington.”

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“U

NDER CONDITIONS OF SO-CALLED “UNITED PARTY

GOVERNMENT,” WHERE ONE PARTY CONTROLS THE WHITE HOUSE, COUPLED WITH A MAJORITY IN BOTH CHAMBERS, THE MAJORITY PARTY MAY BE FOR ALL INTENTS AND PURPOSES THE ‘GOVERNMENT’ WHILE THE MINORITY WILL BE MERELY THE

”

‘OPPOSITION’ SANS LEVERAGE.

of Madisonian republicanism may be in order. Do we need to reform the reforms?

Consider the budget process. At least since the 1977 publication of Morris Fiorina’s Congress: Keystone of the Washington Establishment (Yale University Press), political scientists have raised questions about the evolving character of the legislative process, including the budget process. The October 2013 shutdown provides evidence all may not be well. The budget process certainly seems broken, as witness the seventeen government shutdowns since the 1974 Budget Impoundment and Control Act. Congress routinely fails to meet its own budget deadlines; sometimes it even fails to produce a budget.

Former Treasury Secretary Larry Summers, in a Washington Post op-ed piece, points to problems with our budget process: “it is striking to note that the budget process, in which the filibuster has been taken off the table by reconciliation, is the area most often cited to prove our system’s dysfunction.”2 Robert Dove and Richard Arenberg cite an unintended consequence of the 1974 Budget Act: The authors of the 1974 Budget Act, by providing expedited procedures that prohibit filibusters on budget resolutions and reconciliation bills, and guarantee an up-or-down vote, thought they were building a budget process that would foster bipartisan cooperation. It had the opposite result.3 Budget reforms created a “reconciliation” process that, ironically, has undermined bipartisan reconciliation.

While clearly two different uses of the word “reconciliation,” this may be a classic example of the unintended consequences of reform.

Next, consider filibuster reform.

Larry Summers raises another possible extensions

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unintended consequence of reforms designed to move us closer to simple majority rule, namely, reducing cloture from 67 to 60 votes. He asks, “are we sure that the reduction in the vote threshold wasn’t a contributor to the normalization of the filibuster?”4 In the twentieth century we chipped away at the filibuster, first in the Progressive Era (1890–1920), setting the threshold at a 2/3 vote, and then in the neo-progressive era of the 1970s with a further reduction to a 3/5 vote, compounded by reconciliation providing an end run around the Senate filibuster. This evolution may have had the ironic result – or unintended consequence – of actually increasing use of the filibuster.

Filibuster reform, of course, is also an example of how our Madisonian constitutional system makes hypocrites of us all. Depending on whether we are in the majority or the minority, we may or may not favor filibuster reform. In good Madisonian fashion, where we sit influences what we think. We are all against the filibuster or gridlock, unless it means stopping something we oppose vehemently – whether we are Democrats or Republicans.

Unfortunately, Senate Democrats detonated the nuclear option to further weaken the filibuster in November 2013.

The potential unintended consequences of this reform flow from Harry Reid’s unwillingness to “think institutionally,” as Madison would do, about the complexities of our constitutional system. The Senate may be headed down a slippery slope threatening further filibuster reform and possibly compromising the separation of powers and bicameralism. Critics suggest power may shift to the executive and the Senate may become a little House, a more merely majoritarian institution.

Ironically, partisanship may increase since the filibuster in the past forced the two parties to compromise.

Perhaps most significant, the more majoritarian Senate may compromise Madison’s constitutional conundrum.

Turning the Senate into a more majoritarian “little House” may clarify the “government or opposition” calculus between the parties. Under conditions of so-called “united party government,” where one party controls the White House, coupled with a majority in both chambers, the majority party may be for all intents and purposes the “government” while the minority will be merely the “opposition” sans leverage. We will have taken a large step toward Woodrow Wilson’s British parliamentary ideal, for better or for worse. Is it too late to reform this latest reform?

Earmark reform is another example.

Progressive reform is not limited to periods with Democratic majorities such as Woodrow Wilson’s first term or the early 1970s. Republicans, too, have embraced progressive reforms designed to make the legislative process more open and democratic. Speaker Gingrich, in the 104th Congress, advanced openness reforms that largely echoed efforts begun

by Democrats in the 1970s reform era to allow the sunshine in to disinfect Congress. Speaker John Boehner took this one further step eliminating earmarks in the 112th Congress. Boehner probably wished he had those earmarks when he tried repeatedly and failed to corral the House GOP in the October 2013 showdown.

Campaign finance reform offers yet another instance of reform’s unintended consequences. Speaker Boehner likely also wished he had the ability to leverage more party money to persuade his Tea Party wing to vote with him during the shutdown. Thanks to campaign finance reform, political parties and their leaders have been somewhat sidelined in their ability to influence colleagues’ election prospects. Campaign finance reform may also have had the unintended consequence of forcing members of Congress to spend more time dialing for dollars. Thanks to contribution limits, members may spend more time with their dollar constituencies and less time getting to know their colleagues. Collegiality in Congress may have suffered as a result.

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Congress may be more responsive and less responsible.

Congressional primaries also weaken political parties. The primary-dominated nominating system has contributed to polarization. Low turnout, activistdominated nominations helped turn us into red and blue America. Do we need to reform these reforms, returning the congressional nominating process to the party boss-dominated smoke-filled rooms?

The idea of reintroducing republican restraint into our congressional selection processes is tempting, albeit contrary to our “more open and democratic” proclivities today. It may be difficult, even impossible, to roll back such reforms since elite and popular opinion have for so long been taught the virtues of simple majoritarian democracy, along with the defects of republican restraint.5

more democracy. He created republican (that is, representative) institutions designed to “refine and enlarge the public views.” Viewing the sausage-making of the legislative process, especially under the unblinking stare of the media, has probably not increased citizen trust in government. The decline in trust of government since the 1960s is coincident with transparency reforms.

Trust in Government The decline in congressional approval ratings is also coterminous with denunciations of Congress as the “broken branch,” whether emanating from Ralph Nader, Newt Gingrich, or Tom Mann and Norm Ornstein. Is Congress held in low repute because it is partisan, polarized, gridlocked, and prone to the permanent campaign? Or is Congress held in low

“I

S CONGRESS HELD IN LOW REPUTE BECAUSE IT IS PARTISAN,

POLARIZED, GRIDLOCKED, AND PRONE TO THE PERMANENT CAMPAIGN? OR IS CONGRESS HELD IN LOW REPUTE BECAUSE POLITICIANS, SCHOLARS, AND JOURNALISTS HAVE BEEN ESCALATING THE ARMS RACE OF MEDIA CRITICISM PREMISED ON WILSONIAN IDEAS?

”

Nevertheless, following the Progressive Era we witnessed a retrenchment of sorts.

Sunshine reforms have undermined public trust in government rather than enhance it. Progressive reformers, whether Democratic or Republican, have been calling for more “open and democratic” government since at least the 1960s. In fact, the roots of such reform date to Woodrow Wilson and probably even to the Anti-Federalist concern for more simple, direct democracy. Recently, however, some have begun to recognize that “too much sunshine can burn.”

Madison, of course, would concur. The Constitutional Convention succeeded, in part, because the fifty-five delegates met behind closed doors, under strict confidentiality rules. Delegates were able to repeatedly speak their minds and change their minds across the long summer of 1787. Madison clearly did not think the cure to the ills of democracy is 14

repute because politicians, scholars, and journalists have been escalating the arms race of media criticism premised on Wilsonian ideas? Are we judging our politics by a false Mr. Smith standard?

Today ninety percent of news about politics is negative. Why? In their book Congress and Its Members, Roger Davidson and Walter Oleszek lament the all-too-prevalent caricature of Congress in popular culture in recent decades: The picture of Congress conveyed in the media is scarcely… flattering.

Journalistic hit-and-run specialists… perpetuate a cartoon-like stereotype: an irresponsible and somewhat sleazy gang resembling Woodrow Wilson’s caustic description of the House as “a disintegrating mass of jarring elements.”6 This depiction probably applies as much to conservative talk radio as to

MSNBC. In earlier studies, political scientists Austin Ranney and Thomas Patterson traced the “anti-politics bias of the press” to the Progressive movement at the turn of the twentieth century. This muckraking perspective sees Congress as a cesspool, lacking accountability, suffering from concentrations of power, and overrun by self-serving political parties and interest groups. Have we come full circle to the Anti-Federalist perspective? It may be that public trust has declined not only because Washington has changed, but also because our expectations about government and politics have changed.

Are we all Wilsonians now? Has the AntiFederalist critique of the politics produced by our constitutional system trumped Madison’s defense of the same?

Our expectations about government and politics today certainly seem more Wilsonian than Madisonian. We want progress predicated on governmental activism. We want more “energy” and less “stability.” We are impatient with gridlock and stalemate. This impatience may not be premised solely on the progressive presumption; it ultimately may be rooted in democracy, as both Madison and Alexis de Tocqueville recognized.

In the 1830s Tocqueville witnessed the “tumultuous agitation” of politics in America, including “the continual feverish activity of the legislatures” and the mutability of our laws. In America, he said, there is an “endless mutability in public affairs… for democracy has a taste amounting to passion for variety.

A strange mutability in their legislation is the result.”7 Tocqueville saw the passion for legislative productivity as rooted in democracy in America. Our disdain for purported gridlock today may reflect democracy’s passion for change.

Madison, too, recognized the passion and avidity for change found in democracy.

He warned “the facility and excess of lawmaking seem to be diseases to which our governments are most liable.”8 Madison sought to control the “excess of lawmaking” with his constitutional structure, including the separation of powers and bicameralism. Madison’s republican perspective included an appreciation for limited government. For Madison, a certain amount of distrust of government is a virtue, not a defect.

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“T

HE GROWTH OF GOVERNMENT ALMOST CERTAINLY

EXACERBATES THE DYSFUNCTION OR SEEMING DYSFUNCTION

”

The Growth of Government The growth of government almost certainly exacerbates the dysfunction or seeming dysfunction in our politics today.

One measure of this is the explosion of organized interests and lobbyists in Washington, reportedly contributing to “demosclerosis” or hyperpluralism.

Another measure is partisan polarization. In essence, the two parties are polarized over questions about the role of government and the size of government. Both parties have contributed to the growth of government in the modern era.

Simplifying for the sake of argument, Democrats have promoted the welfare state, while Republicans have advanced the warfare state. In point of fact, of course, both parties have contributed to the growth of government and the increased role of government in both spheres, as witness George W. Bush’s No Child Left Behind and Medicare Prescription Drugs reforms and Barack Obama’s extension of Bush-era national security policies involving the Patriot Act, drones, and NSA surveillance.

The size and role of government has grown dramatically while trust in government has declined and partisan polarization has advanced. As James Q. Wilson observed, at one time our politics was about a few things, today it is about everything. Big government gives us big politics.

Jeff Bergner, a political theorist and former longtime Hill staffer, sees Democrats and Republicans defending their competing narratives today: activist government vs. limited government, big government vs. self-government, legislative productivity vs. incrementalism, fairness vs. empowerment, equality vs. liberty. Arguably, both perspectives have their roots in the Constitution.9 President Obama and congressional Democrats increased partisan polarization by advancing comprehensive healthcare reform, just as President Bush augmented extensions

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partisan tensions by dramatically cutting taxes and attempting to advance Social Security reform. Nancy Pelosi and John Boehner fought, respectively, for and against these presidential initiatives.

Both parties sought to obstruct policies advanced by the other party. Why? Were they obstructing for the sake of obstructing – being merely partisan and promoting gridlock – or did they have reasons for playing the politics of confrontation? Both parties were very likely standing on principle and promoting their partisan ambitions.

Partisan polarization may yet prove constructive if it promotes serious examination of fundamental questions about the proper role of government.

Critical elections throughout American history have often turned on such questions during which the two opposing parties offered voters a choice not an echo. Perhaps we are moving in due time toward such an election. Perhaps, too, the American people will finally make up their minds and give one party or the other a long-term, enduring governing majority, moving us beyond persistently divided government.

Associated Press

IN OUR POLITICS TODAY.

Notes 1. For the continuity between 1970s Democratic and 1990s Republican reforms, see Don Wolfensberger, “Procedural Politics: Oleszek Wrote the Book on Congress,” Roll Call, September 24, 2013.

2. Lawrence Summers, “Our problems don’t begin and end with government,” Washington Post, April 19, 2013 (http:// www.washingtonpost.com/blogs/postpartisan/wp/2013/04/19/our-problems-dontbegin-and-end-with-government/).

3. Robert Dove and Richard Arenberg, Defending the Filibuster (Bloomington: Indianapolis University Press, 2012), 80.

4. Ezra Klein, “Larry Summers on why we shouldn’t worry about gridlock,” Washington Post, April 19, 2013 (http:// www.washingtonpost.com/blogs/wonkblog/ wp/2013/04/19/larry-summers-on-why-weshouldnt-worry-about-gridlock/).

5. James W. Ceaser, Designing a Polity: America’s Constitution in Theory and Practice (Lanham, MD: Rowman and Littlefield, 2011), chapter 6, “Doctrines of Presidential-Congressional Relations.”

6. Roger Davidson and Walter Oleszek, Congress and Its Members (Washington, DC: CQ Press, Tenth edition, 2006), 9.

7. Alexis de Tocqueville, Democracy in America, J.P. Mayer ed. (New York: Harper & Row, 1966), 398. All other citations in this paragraph are from pp.

202, 241-244.

8. Federalist No. 62.

9. Jeff Bergner, “Can Republicans Govern?” The Weekly Standard, February 8, 2010, 23-27.

President Richard Nixon signed the Budget Impoundment and Control Act on July 12, 1974, giving congress tighter control of the budget process, but there have been 17 government shutdowns since that time.

Behind him from left are, Rep. John H. Rousselot (R-Calif.), House Speaker Carl Albert, Rep. David T. Martin (R-Neb.), Sen. Charles Percy (R-Ill.), Rep. Al Ullman (D-Ore.), Sen. Edmund Muskie (D-Maine), and Rep. Joel T. Broyhill (R-Va.)

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Majorities and Madisonian Paradoxes Greg Weiner

Assumption College

T

hat James Madison would not recognize contemporary American constitutionalism seems beyond dispute, but on his own premises, that need not impugn either his Constitution or ours. The question is precisely what he would not recognize and precisely why. The task, in other words, is to separate timeless premises in his thought from contingent ones. To the extent his political assumptions reflect the socioeconomic realities of the late eighteenth century, we need not mourn our departure from them. But if we have, by contrast, departed from enduring assumptions arising from unchanging human nature – and especially if we have done so without altering the constitutional parchment to keep pace with constitutional practice – that is worth a pause for reflection. Such a pause will reveal, I believe, that the frenetic pace of contemporary politics, the decline of deliberate majority rule, and the emasculation of Congress all stand in tension with the Madisonian ethos.

The question is whether, on his own suppositions, Madison would be in any position to complain. He might not be, and this gives rise to what might be called a Madisonian paradox: Madisonian premises cause, or at least countenance, the corrosion of the Madisonian regime. That, as we shall see, is one Madisonian paradox among many.

Paradox One: Politics and Patience The enduring essence of Madison’s constitutionalism lies in deliberate majority rule secured and seasoned by time.1 That is, the question for him is not whether majorities rule, but rather when they rule. A sharp dichotomy between passion and reason operates in Madison’s democratic thought, with an assumption that passion is naturally dissipated by delay. Majorities were ultimately but not immediately entitled to rule, so that, for example, senators were elected to six-year terms precisely so they would enjoy the freedom to resist popular passions that would, in turn, dissipate before re-election.

But if the reason-passion dichotomy operates in Madison’s thought, so does an ironclad assumption that majorities are entitled in all cases – even when behaving unjustly – to rule.2 He does observe that matters in an extended republic are naturally arranged so as to inhibit the emergence of majority factions, but he nowhere questions the right of all majorities, factious or not, to prevail. On the contrary, he several times explicitly endorses majority rule, calling it, rather than individual rights, the “vital principle of our free constitution.” Consequently, Madison treats constitutional mechanisms as speed bumps rather than roadblocks: delaying mechanisms that slow majorities so they can be seasoned. But he always opposed absolute barriers to the rule of majorities. He described a Senate based on equality of the states rather than population, for example, as “confessedly unjust” and was nearly willing to dissolve the Philadelphia Convention rather than accept the institution so constituted.3 The problem for Madisonian politics today is the pace of modern politics, an inescapable phenomenon. In Madison’s day, delay was a fact of life. The seasoning of passions, like the passing of seasons, played at a moderate tempo because technology 16

Greg Weiner is an assistant professor of political science at Assumption College and the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics, as well as numerous articles and essays on the political theory of James Madison and other American founders. Professor Weiner’s book on the political thought of Daniel Patrick Moynihan will be published by the University Press of Kansas in March 2015.

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simply did not enable it to occur any faster. Communication was by letter, travel by carriage. Today one need hardly rehearse the myriad ways in which communication has become instantaneous and far-reaching. And our expectations have, if anything, outpaced technology. Ours is a politics of immediate gratification; politics now runs at permanent allegro. We judge politicians based on the amount of change they are able to generate in the shortest possible time, and delay is equated with the dreaded accusation of gridlock. A failure of the representative system immediately to reflect the public will is attributed to corruption.

pace of communication once created but that technology has consumed.

Hence we arrive at the first Madisonian paradox, for Madisonian politics must now do that which is inherently alien to it: depend on virtue. The entire apparatus of separation of powers rejects virtue as unreliable, depressing the lever of selfinterest to move the mechanism instead.

Yet now the Madisonian regime’s central strategy of dispersing passion through the mechanism of delay must depend on the very individuals whom it assumes to be inflamed by passion restraining their own appetites and agreeing, though empirical realities do not force them to, to defer decisions.

“T

HE ENDURING ESSENCE OF MADISON’S

CONSTITUTIONALISM LIES IN DELIBERATE MAJORITY RULE SECURED AND SEASONED BY TIME. THAT IS, THE QUESTION FOR HIM IS NOT WHETHER MAJORITIES RULE, BUT RATHER WHEN THEY RULE.

”

Presidents feel this pressure especially acutely. From the moment they lift their hands from the Bible and the last word of the presidential oath escapes their lips, they are placed on the hundred-day clock first formulated amid the genuine crisis of Franklin Roosevelt’s first administration but now applied regardless of whether any emergency obtains. Even a president in his or her second term – presumably re-elected precisely because the public was satisfied and the appetite for change was at an ebb – is evaluated by the hundredday standard, a formula I have expressed as “success equals change divided by time (s=c/t).”

The decisive point is that the quality that sustains the Madisonian system – patience – has been transformed from an empirical fact into a moral virtue.

One had no choice but to wait in the eighteenth century; one must choose to do so in the twenty-first. The Madisonian system only dispels passion if the people are willing to defer gratification and allow their elected leaders space in which to operate – space that the naturally slow extensions

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Given these pressures, deliberate majority rule seems difficult enough.

The next Madisonian paradox pertains to whether, in any meaningful sense, majorities can any longer be said to rule at all.

Paradox Two: Minorities Rule Federalist No. 10 devotes a sum total of two sentences to what has become one of the most persistent complaints about American politics: special-interest groups whose influence exceeds their size. Madison writes that these groups – minority factions – will be dispensed with by the “republican principle,” by which he means majority rule. The bedrock assumption is of conflict between the majority and minority. The problem – the paradox – is that the very dynamic on which Federalist No. 10 relies to control majority factions, the size of the extended republic, when combined with a positive state actively involved in distributing or regulating small economic advantages, systematically undermines conflict and thereby empowers minority factions.

As George W. Carey has noted, Madison’s analysis in Federalist No. 10,

which assigns majorities the role of impartial judges in settling legislative disputes, appears to presume something like a passive night-watchman state, since [a] positive government would, more likely than not, serve to arouse the people; and, to the extent that it became the mechanism through which interests, factious or not, could achieve differential and favored treatment, it would increasingly become the object of capture or domination.4 The initiation of an active economic role for the state – and it bears emphasis that while this entered the regime through the New Deal, it has persisted on both sides of the partisan aisle either through appropriations or through the manipulation of the tax code – introduces the problem of concentrated benefits and diffuse costs familiar to public-choice theorists. That is, it fundamentally alters the incentives for majorities to participate in conflict. Minorities always retain an interest in defending benefits, but it is unclear at best that majorities bear an interest in resisting them. If minorities can render each voter’s share of a given economic advantage sufficiently small, the cost of resistance may exceed the cost of the subsidy itself. The result is that the larger the population grows, the more diffuse the costs to majorities become, and the more, in turn, their incentive to participate in conflict is diminished.

Consider the much-maligned Rural Utilities Service, an agency that has outlived its Depression-era mission to electrify small towns. Assuming arguendo that some portion of its nearly $10 billion annual budget consists of projects supported by minority factions – Citizens Against Government Waste, for example, cites a broadband access program that costs more than $5,000 per capita for each of the residents of one town of 122 people in Arkansas5 – the question is how they are able to ply these schemes against what would seem to be the overwhelming force of a national majority that pays for them. The answer is that the cost is so dispersed that it is cheaper for a taxpayer at the national level – whose share of the Arkansas project, for example, amounted to roughly four-tenths of a cent per tax return, a fraction of the cost of mailing a letter of protest to one’s member of Congress – to resist. The point here is not to stigmatize any one project, or still less to identify a single project in Arkansas 17

Paradox Three: The Collapse of Congressional Government “The legislative department,” Madison wrote in Federalist No. 48, “is everywhere 18

House Speaker John Boehner has launched a lawsuit accusing President Obama of failing to carry out the laws passed by Congress.

extending the sphere of its activity, and drawing all power into its impetuous vortex.”7 Today the impetuous vortex has become altogether acquiescent, and this gives rise to the third Madisonian paradox. That a branch of government would rise or fall in power would be disconcerting to Madison but not necessarily paradoxical. What is paradoxical on his assumptions is this: Not only has congressional government collapsed, Congress has connived in its own emasculation, readily, even eagerly, transferring broad swaths of authority over matters ranging from economic policy to national security to the executive and the courts. This is, in the Madisonian ethos, quite literally unthinkable because the separation of powers runs on a coiled spring of self-interest.

The relevant self-interest is the exercise of power. The assumption of Federalist No. 51 is that political man seeks office to exercise power and would not want it otherwise. This is the “ambition” of which Federalist No. 51 speaks. It is important to recall that Washington in the early years of the republic was not an imperial

capital; foreign ambassadors had to be awarded hazard pay to be induced to be stationed there. There was scant glory attached to election to Congress; the pay was modest, the travel brutal, the honor modest. If not for exercising power, there was little reason to have the job. This is the spring Madison coiled in Federalist No. 51. Each branch would defend itself against encroachments on its authority because it did not want its power, its very motive force, diminished.

Recently, though, Congress has proved stunningly acquiescent in the erosion of its own authority. Presidents Bush and Obama have routinely signed laws yet attached statements indicating their intention not to be bound by them, with nary a grunt from all but a few vocal members of Congress who are largely dismissed as eccentrics. President Obama has repeatedly and unilaterally altered the terms of the Affordable Care Act through a sweeping and unprecedented understanding of prosecutorial discretion that would presumably give a Republican successor the authority to suspend enforcement of, say, the minimum wage or some other law he or she finds Summer 2014

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Associated Press.

as a failure of the Madisonian regime – Madison did, after all, say minority factions would be able to “clog the administration” – but rather to observe that the larger the extent of the country, the easier it will be for minority factions to prevail.

In turn, the advent of positive government would appear to implicate E. E. Schattschneider’s thesis that the key to understanding politics is to understand the scope of conflict.6 Schattschneider suggests it is “the losing side [in a conflict] that calls in outside help.” Here we can see why. A subsidy-seeker is in a naturally losing position until he or she expands the scope of conflict. The incentive is to inflate conflict to a level of government beyond which it dissipates altogether. Had the project in Arkansas been financed at the municipal level, for example, each taxpayer’s share of it would have ballooned to several thousand dollars; at the state level, it would have been more than $3 per adult. It is only by inflating the scope of conflict to the national level that the cost is dispersed such that the incentive for conflict dissipates altogether, and the broader that scope, the less the incentive.

The issue here is not, it must be emphasized, that the national government is involved in distributing economic advantages. Rather, it is involved in distributing small economic advantages.

Interest groups certainly accrete around large programs like Social Security, but these programs are simple and substantial and are consequently accessible to majority engagement. The majority’s share of them is visible and attracts inspection. The minority factions that are more difficult to root out are the ones involved in exploiting smaller, remote, complex corners of the statute books and regulatory code. With respect to minority factions, the issue, then, is not the generosity but rather the complexity of government. Especially to the extent the complexity of government correlates with the size of the country, Madison’s extended republic thesis stands on its head with respect to minority factions: The larger the country, the greater their influence.

objectionable or unworkable. President Obama has faced complaints but no consequences from Congress. The last vestiges of the War Powers Resolution, already tattered, were eviscerated when the Obama Administration contended that the resolution did not apply to operations in Libya because – despite the fact that explosive devices were dropping from airplanes carrying the insignia of the U.S. military – troops there were not engaged in “hostilities.” Again, Congress did nothing.

This would certainly trouble the Madison of both The Federalist and the Helvidius essays. The Federalist, miscast as outlining a regime of “separate but equal”8 branches, in fact delineates one of clear legislative supremacy to which Madison himself adhered throughout his own career, including as president – an office in which, for instance, he deferred to Congress on the question of war with Great Britain in 1812 despite his contention that the enemy had already initiated what amounted to hostilities. Similarly, the Helvidius essays insightfully identify a conflict of interest involved in presidents both declaring and prosecuting wars.

It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.

The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.9 Yet this combination of the powers to declare and prosecute war is substantially the contemporary practice. Executives are, in President Bush’s memorable phrase, the “deciders.” That Congress possesses this power constitutionally is clear enough; the paradox is its near total disinterest in exercising it.

The explanation, on Madison’s reasoning, must be that the attractions of office are something other than exercising power. The honorific or material allures of the position, chiefly the inducements upon leaving it, now both make it attractive to retain the job for long periods independent of any power it confers. Thus the frantic and unrelenting race for reelection and the willingness to defer power to a president of one’s own party if doing so aids that cause or to a extensions

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president of any party if doing so enables one to escape accountability.

We have, then, three paradoxes. First, Madisonian politics must rely on that on which Madison was unwilling to depend: a virtue – namely, patience. Second, minority factions are able to prevail not despite, but precisely because of, the very extended republic that solved the problem of majority factions in Federalist No. 10. Finally, Congress – the supposed “impetuous vortex” – has become acquiescent in apparent desertion of the motives on which Federalist No. 51 relies for the proper operation of the regime.

Each of these leads us to a question that reveals what may be the Madisonian paradox: Would Madison, in any of these cases, be in any position to complain?

Constitution remains a multigenerational inheritance but one whose meaning is within the reasoned reach of the living.

The paradox is this: Each of the changes we have encountered – the insistence on instant solutions in politics, the advent of positive government that fuels minority factions, and the rise of presidential government – has now received the same kind of affirmation, and arguably more and longer of it, that Madison said rendered the Bank constitutional. By that reasoning, the very developments that undermine Madisonianism have acquired, through time and enduring assent, Madisonian legitimacy. Given that, can Madisonianism survive?

I believe it can. But it requires

“T

HE DECISIVE POINT IS THAT THE QUALITY THAT

SUSTAINS THE MADISONIAN SYSTEM — PATIENCE — HAS BEEN TRANSFORMED FROM AN EMPIRICAL FACT INTO A MORAL VIRTUE. ONE HAD NO CHOICE BUT TO WAIT IN THE 18TH CENTURY; ONE MUST CHOOSE TO DO SO IN THE 21ST.

The Madisonian Paradox In 1815, Madison waived his longstanding constitutional objections to a National Bank, inciting charges of inconsistency arising from expediency, accusations that dogged him the rest of his life. He explained that continued constitutional disputation was “precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation. . . .”10 Madison meant that the meaning of the Constitution rested with the people and could change based on an interpretation that was, crucially, both repeated so as to ensure its reasonableness and offered from the diverse perspectives represented by all three branches of government. I have elsewhere described this philosophy as a “living Constitution with a slow metabolism.”11 It ensures that the

”

separating facile restorationism – the decidedly un-Madisonian view that anything Madison would not have recognized is inherently illegitimate – from the underlying and therefore enduring premises of the regime. Positive government, what commonly sails under the New Deal flag, is with us. It has been repeatedly affirmed by broad and bipartisan majorities of all three branches of government. Contrary to the rhetoric that sometimes surrounds it, its basic premises enjoy broad support from both liberal and conservative officeholders – none of whom, for example, has signed up for dismantling Social Security. It is clear that the state, and specifically the national government, is going to be involved in the distribution of economic advantages. The simple fact that Madison did not foresee the state operating in this way does not constitute a thoughtful, or even a Madisonian, indictment of it.

But the paradoxes we have seen do suggest several ways of reconceiving its operation and growth. One is that 19

the state can be ameliorative without being interventionist, at least in the micromanagerial sense. That is, to the extent the state distributes economic advantages, they could be few and clear rather than many and microscopic. Social Security is an example. Whatever its flaws, and its fiscal woes are certainly well documented, it cannot be accused of thwarting majority will insofar as majorities are clearly aware of the program and its costs and it is large enough to provide an incentive to resist if they are so inclined. Similarly, one can imagine a tax code – even one graduated at several rates – without deductions that serves much the same purpose: a clear, clean debate about redistribution – including whether to have any at all – rather than an infinite universe of infinitesimal tax breaks none of which attracts opposition because each of which is small enough to disperse opposition. And to the extent we choose complex interventionist government, we should be aware of its political costs – its inherent propensity to breed minority factions – rather than resorting to knee-jerk assumptions about corruption.

limits most suggest themselves in this context, since they both reduce the value of congressional relationships – which are what massive paydays for Capitol Hill veterans are intended to purchase – and, by making indefinite terms impossible, diminish the utility and thus the urgency of each preceding term. Of course, criticisms of term limits are well known; chief among them is that they would weaken Congress by draining the body of institutional expertise. Yet the analysis above suggests it is the desire to cling to the position for its own sake rather than for its power that weakens the institution. In any case, measures that aim to redress constitutional imbalances without addressing the motive of members of Congress to utilize the powers (already) available to them overlook the core psychology of Federalist No. 51.

Third, and both most vexing and most important, we must recover as close to the virtue of patience as an immense people living in a tumultuous time can approximate. One need hardly say we are not returning to the era of communication by post. But we can moderate our expectations of the pace

“I

T MAY NOT BE TOO MUCH TO HOPE THAT CIVIC EDUCATION,

AWARE OF MADISON’S PARADOXES, MIGHT BEGIN TO RECOVER

”

CIVIC CONSCIOUSNESS TOO.

Second, if the foregoing observations about Congress are substantially correct, they also suggest that the restoration of legislative government would have to break the cycle of self-seeking behavior such that the inducements of office once more center on the exercise of power. That is decidedly not to say members of Congress, who are hardly paid extravagantly, should be paid less.

It is to say reforms that diminish the attractiveness of massive paydays for former members of Congress because they were members of Congress merit consideration, as do changes that diminish the utility of subsequent terms in Congress such that members are not so driven to obtain them. The point is to erode motives for retaining the office other than the exercise of power. Term 20

of change. We can recognize that the constitutional system was not designed to bear the pressures of instant gratification we have lately placed on it. We can give representatives space in which to operate – hold them accountable at election time without constantly shouting into their ears and peering over their shoulders.

We can recognize that the genius of the system, like the beauty of baseball, often lies in the inhibition rather than the facilitation of action.

This requires a fundamental change in the disposition of citizenship, one that must likely start with civic education that centers less on what government does for and owes to each of us than on how a political community coheres. Civic education has contributed masterfully to the production of an atomized citizenry

hyperaware of what it believes it deserves.

It may not be too much to hope that civic education, aware of Madison’s paradoxes, might begin to recover civic consciousness too.

Notes 1. Greg Weiner, Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics (Lawrence, Kansas: University Press of Kansas, 2012).

2. Greg Weiner, “James Madison and the Legitimacy of Majority Factions,” American Political Thought 2:2 (Fall 2013): 198-216.

3. For this reason, it is difficult to imagine Madison countenancing the filibuster rule as it is contemporarily applied: that is, as requiring what amounts to a functional 60-vote supermajority for ordinary legislation. A talking filibuster that served as a genuine brake and that fostered deliberation – rather than the “track” system that has, since the 1970s, allowed filibusters to operate in the background of the Senate – might serve a Madisonian purpose. An actual roadblock, by contrast, does not.

4. George W. Carey, In Defense of the Constitution (Indianapolis: Liberty Fund, 1995), 49.

5. Sean Kennedy, Prime Cuts Summary (Washington, DC: Citizens Against Government Waste, 2013). http://cagw. org/sites/default/files/users/user1/2013%20 Prime%20Cuts%20Final_.pdf 6. E.E. Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (New York: Harcourt Brace Jovanovich, 1975), 16.

7. Alexander Hamilton, James Madison, and John Jay, The Federalist: The Gideon Edition (Indianapolis: Liberty Fund, 2001) 256-257.

8. The sorry provenance of the phrase “separate but equal” in American constitutional history ought to have been enough to warn against its use in a nobler context.

9. Morton J. Frisch, The PacificusHelvidius Debates of 1793-1794 (Indianapolis: Liberty Fund, 2007), 87.

10. James Madison, The Writings of James Madison: Volume VIII (New York: G.P. Putnam’s Sons, 1908), 327.

11. Weiner, 2012, op. cit.

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for the record

News from the Center LaDonna Sullivan Managing Editor

We are very excited to announce that Michael H. Crespin is the new associate director of the Carl Albert Center. A prolific congressional scholar, he will lead the Center’s graduate and undergraduate research fellowship programs. And, as an associate professor of political science, he will also teach courses in American politics, congress, and elections. Mike came to OU from the University of Texas at Dallas where he served as associate program head and graduate advisor for the political science program in the School of Economic, Political and Policy Sciences. He began his career with six years as an assistant professor at University of Georgia after earning his Ph.D. from Michigan State University. He has already received several prestigious awards for his research and teaching, and he was an American Political Science Association Congressional Fellow, 2005-2006.

On July 1, Glen Krutz began full-time duties as the University of Oklahoma’s vice provost for academic initiatives.

In announcing his departure from the Carl Albert Center, Director Cindy Simon Rosenthal said, “Glen has been a tremendous mentor for our graduate students as well as director of the Center’s various undergraduate student initiatives. During his nine-year service as associate director of the Center, he provided valuable advice, leadership, and enterprising scholarship.”

Associate Director Mike Crespin

Archives Archivists Bailey Hoffner and Robert Lay attended the 11th annual meeting of the Association of Centers for the Study of Congress (ACSC) in May. Hosted by the South Carolina Political Collections at the University of South Carolina, the meeting provided an opportunity for networking with similar institutions and for exchanging ideas about outreach and the future of congressional archives.

Hoffner served on the ACSC Congress Week task force which created the website CongressWeek.org to distribute

information about the annual event in April, and ACSC awarded her the Raymond W. Smock Fellowship for travel to the ACSC annual meeting.

Hoffner chaired a session at the annual meeting of the Society of Southwest Archivists in New Orleans, and presented her paper entitled “Dealing with Change: Technology, Archivist Succession, and Processing Large Collections.”

Both Hoffner and Lay participated in two recent teacher institutes that convened on OU’s Norman campus: Visions of America, sponsored by the Institute for American Constitutional Heritage and the Center for the History of Liberty; and the Department of History’s Summer Institute for Teachers on Oklahoma History. Both of these groups came by the Carl Albert Center Congressional Archives for a tour and had the opportunity to engage primary source materials and discuss the creation of curricular materials for their classrooms.

The Carl Albert Center Visiting Scholars Program provided funding recently for research conducted in the archives by these scholars: • Professor Michael E. Begay, School of Public Health and Health Sciences, University of Massachusetts: the politics of national health insurance in the 81st Congress (1949-1951).

• Professor Shamira M. Gelbman, Political Science Department, Wabash College: interest group coalitions of the civil rights movement.

• Professor Joseph E. Taylor III, History Department, Simon Fraser University: the congressional career of Edward T. Taylor.

• Doctoral student Paul Mokrzycki, History Department, University of Iowa: “Stranger Danger: Missing Children, the Culture Wars, and The Politics of American Childhood.”

Carl Albert Center Archives Student Assistant Sarah Khaleghipour created an exhibit celebrating the congressional career of former Senator Fred Harris. The exhibit was displayed during Senator Harris’s visit to the OU campus in April.

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On April 8, Akash Patel received the annual Carl Albert Award from OU’s College of Arts and Sciences. In the photo above are (from the left) Carl Albert’s daughter Mary Frances, Akash Patel, Carl Albert’s granddaughter Kathryn, Carl Albert Center Director and Curator Cindy Simon Rosenthal, and OU President David L. Boren.

Awards Akash Patel, a Carl Albert Center Capitol Scholar majoring in political science with minors in philosophy and constitutional studies, received the 2014 Carl Albert Award, presented each year by the OU College of Arts and Sciences to the outstanding senior in the college.

Akash was a featured speaker at the college’s spring convocation and was selected as a TEDxOU student speaker.

In addition to winning an impressive array of scholarships and awards during his undergraduate studies at OU, Akash was very active in charitable community organizations. He says the most valuable skill his education at OU provided him was “recognizing opportunities for public service, wherever they may be.” And he credits the Carl Albert Center Capitol Scholars program for placing him at the Oklahoma State Senate where he had an opportunity to work in areas about which he is most passionate: immigration and education. After graduating, Akash 22

founded Aspiring Americans Initiative, a nonprofit that helps immigrant students in Oklahoma City learn about their educational opportunities, legal rights, and resources.

At the Political Science Department’s annual awards luncheon in April, Carl Albert Center Undergraduate Fellow Blake McCracken received the meritorious Robert Dean Bass Memorial

The Carl Albert Center’s new graduate fellow, Jessica Hayden, already holds a J.D. degree from the University of Florida with an emphasis on constitutional law, a master’s degree in political science from the University of West Florida, and a bachelor’s degree from Appalachian State University. While pursuing her master’s degree, Jessica presented solely authored papers at the Florida and Midwestern Political Science Associations’ 2012 annual conferences. Her article “The Form and Function of Poverty: Examining National Identity through Public Housing Architecture” was published in 2013 in the professional journal Perspectives on Political Science (42:131-141). After completing her master’s degree, Jessica worked as an instructor of both American and comparative political science courses at University of West Florida.

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Scholarship, and Carl Albert Center Civic Engagement Fellow Tracey Bark garnered the John W. Wood Award for best research paper in the field of American political theory, political leadership, or the presidency. Among the Center’s Capitol Scholars, Alissa Rice won the Kelly Sullivan Memorial Scholarship while Elizabeth Byrne won the June and Oliver Benson Memorial Scholarship. Both Alissa and Elizabeth also received a John Halvor Leek Memorial Scholarship.

Publications Carl Albert Center Graduate Fellowship alumnus Matthew O. Field is the author of a textbook titled Congress, the Constitution, and Divided Government.

The book was published in 2013 by LFB Scholarly Publishing LLC. Matt currently serves as historian for the U.S. Capitol Visitor Center.

Rothbaum Lecture Professor Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University and director of graduate studies in the Department of Politics, has agreed to deliver the next Julian J. Rothbaum Distinguished Lecture in Representative Government during the 2015 fall semester. Professor Whittington is an award-winning teacher and scholar who has published widely on American

constitutional theory and development, federalism, judicial politics, and the presidency.

Women’s Leadership Initiative Carl Albert Center Director Cindy Simon Rosenthal, Assistant Director Lauren Schueler, and Graduate Assistant Bailey Perkins conducted the thirteenth annual N.E.W. (National Education for Women’s) Leadership institute May 16-20. The intensive, five-day institute was hosted on the Norman campus of OU and at the state capitol, bringing undergraduate students together with Oklahoma’s top women leaders in government, business, and non-profit sectors. This year’s N.E.W. Leadership class was composed of 36 women from 20 colleges and universities throughout Oklahoma. Faculty-in-residence for the institute included Edmond City Councilwoman Victoria Caldwell, Cherokee Nation Treasurer Lacey Horn, and Sharon Jackson-Glover, president of the Black Chamber of Commerce of Metropolitan Oklahoma City.

N.E.W. Leadership

Community Coffee Klatch The Coffee Klatch group met at the Carl Albert Center on April 4 with former Senator Fred R. Harris, professor emeritus of political science at the University of New Mexico, for a lively discussion on partisan gridlock in the U. S. Senate and filibuster reform.

Senator Harris was born in Oklahoma and received his bachelor’s degree and his law degree with distinction from the University of Oklahoma. He served in the Oklahoma state senate (1956-1964) and in the U.S. Senate (1964-1973).

In addition to eighteen non-fiction books on politics, government, and social issues, he has also written several novels, including the award-winning Coyote Revenge, set in 1930s Oklahoma.

Class of 2014. Front Row (left to right): Kaylin Cullum, Jenna McGrath, Sheyda Zakerion, Katelynn Wright, Amanda Sandoval, Devin Doty, Grace Williams, Veronica Hassink. Second Row: Kaitlan Sue Beasley, Rachael McQueen, Alissa Price, Kelsey Kolbe, Haley Stritzel, Macy Garcia, Alli Owen, Patience Williams, Megan Francisco, Blake Baker. Third Row: Kelly High, Kimberly Qualls, Alfa Abame, Tracey Starwalt, Tracy Hope, Virginia Singleton, Shelby Hansen, Clarissa Davis, Denali Hicks, Chelsey Garner. Fourth Row: Raquel Conway, Kellie Reidlinger, Bonnie Marcy, Jessie Heidlage, Hayley Scott, Ronni Joe Killion, Sarah McManes, Faculty-in-Residence Lacey Horn, Faculty-in-Residence Victoria Caldwell, Carl Albert Center Director Cindy Simon Rosenthal, N.E.W. Leadership Assistant Director Lauren Schueler, N.E.W. Leadership Graduate Assistant Bailey Perkins. Not pictured is Faculty-in-Residence Sharron Jackson-Glover.

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THE CARL ALBERT GRADUATE FELLOWSHIP PROGRAM ~ A Commitment to the Study of Representative Government ~ Each Carl Albert Fellow pursues a rigorous and individualized program of study while working closely with faculty. The fellowship is a four-year program leading to the acquisition of the Ph.D. degree in cooperation with the Department of Political Science at The University of Oklahoma.

Carl Albert Fellows focus their program of study on fundamental issues in representative government. The central focus is in the field of American government and includes institutions, processes, and public policy. In addition, Fellows pursue two additional fields of study selected from among comparative politics, international relations, methods, political theory, public administration, or public policy.

The fellowship program values both instructional development and research productivity. Carl Albert Fellows are expected to develop original research leading to professional conference presentation and publication. The Center’s resources enable Fellows to pursue field research where appropriate to the dissertation research design.

Carl Albert Fellows Tyler Hughes (far left) and Victoria Rickard met with Professor Tom Patterson while he was on campus to deliver the 2013 Julian J. Rothbaum Distinguished Lecture in Representative Government. Professor Patterson is Bradlee Professor of Government and the Press, Kennedy School of Government, Harvard University.

The fellowship package includes four years of financial support in teaching or research appointments, full tuition and fees, funded research and conference travel, summer support, participation and course work at the Inter-university Consortium for Political and Social Research, and dissertation research funds.

Carl Albert Fellows are introduced to nationally known political leaders and scholars through special guest lectures and seminars. Visitors have included former Ambassador James R. Jones, former U.S. Senator George McGovern, and former Congressmen Dick Armey and Mickey Edwards as well as distinguished scholars James E. Campbell, Morris Fiorina, Jennifer Hochschild, Tom Patterson, Jack Rakove, and Steven S. Smith.

Carl Albert Fellows access a rich and diverse selection of other resources at The University of Oklahoma: • Carl Albert Center Archives http://www.ou.edu/special/albertctr/archives • Public Opinion Learning Laboratory (P.O.L.L.) http://www.ou.edu/oupoll • Political Commercial Archives http://www.ou.edu/pccenter • Center for Applied Social Research http://casr.ou.edu

CARL ALBERT GRADUATE FELLOWSHIP Application Deadline: February 1.

Apply Online http://www.ou.edu/carlalbertcenter/student/grad-fellow.html.

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The Carl Albert Congressional Research and Studies Center 630 Parrington Oval, Room 101 Norman, Oklahoma 73019-4031 (405) 325-6372 http://www.ou.edu/carlalbertcenter

PAID University of Oklahoma

Visiting Scholars Program The Carl Albert Congressional Research and Studies Center at the University of Oklahoma seeks applicants for its Visiting Scholars Program, which provides financial assistance to researchers working at the Center’s archives. Awards of $500-$1000 are normally granted as reimbursement for travel and lodging.

The Center’s holdings include the papers of many former members of Congress, such as Speaker Carl Albert, Robert S. Kerr, and Fred Harris of Oklahoma, Helen Gahagan Douglas and Jeffery Cohelan of California, and Neil Gallagher of New Jersey. Besides the history of Congress, congressional leadership, national and Oklahoma politics, and election campaigns, the collections also document government policy affecting agriculture, Native Americans, energy, foreign affairs, the environment, and the economy.

Topics that can be studied include the Great Depression, flood control, soil conservation, and tribal affairs.

At least one collection provides insight on women in American politics. Most materials date from the 1920s to the 1990s, although there is one nineteenth-century collection. The Center’s collections are described on the World Wide Web at http://www.ou.edu/carlalbertcenter and in the publication titled A Guide to the Carl Albert Center Congressional Archives (Norman, Okla.: The Carl Albert Center, 1995) by Judy Day, et al., available at many U. S. academic libraries. Additional information can be obtained from the Center.

The Visiting Scholars Program is open to any applicant. Emphasis is given to those pursuing postdoctoral research in history, political science, and other fields. Graduate students involved in research for publication, thesis, or dissertation are encouraged to apply. Professional writers and researchers are also invited to apply. The Center evaluates each research proposal based upon its merits, and funding for a variety of topics is expected.

No standardized form is needed for application. Instead, a series of documents should be sent to the Center, including: (1) a description of the research proposal in fewer than 1000 words; (2) a personal vita; (3) an explanation of how the Center’s resources will assist the researcher; (4) a budget proposal; and (5) a letter of reference from an established scholar in the discipline attesting to the significance of the research. Applications are accepted at any time.

For more information, please contact: Archivist, Carl Albert Center, 630 Parrington Oval, Room 101, University of Oklahoma, Norman, OK 73019. Telephone: (405) 325-5835. FAX: (405) 325-6419. E-mail: cacarchives@ ou.edu The University of Oklahoma is an Equal Opportunity Institution

Extensions is a copyrighted publication of the Carl Albert Congressional Research and Studies Center. It is distributed free of charge twice a year. All Rights Reserved.

Extensions and the Carl Albert Center symbol are trademarks of the Carl Albert Center. Copyright Carl Albert Center, The University of Oklahoma, 1985.

Statements contained herein do not necessarily reflect the views of the Carl Albert Center or the regents of The University of Oklahoma.