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Monday, October 17, 2011

“The Federalist”

Hamilton, Madison, and Jay, The Federalist (New York: Modern Library, 2000).

In Philadelphia in the summer of 1787, delegates gathered to come up with suitable changes to the Articles of Confederation, the document that had outlined the terms of cooperation of the thirteen American colonies in their struggle for independence from Great Britain. During the Revolutionary War and in the years immediately following, the Articles had proved themselves woefully inadequate. They bound the confederacy too loosely. Many states were not paying up for their share of war costs, and the Articles provided no powers for forcing them to do so. Interstate commerce was being hampered by state-imposed tariff barriers that were self-canceling at best, self-destructive at worst. And Shays’ Rebellion in Massachusetts seemed to indicate the need for some centralized military power to maintain public order and security.

Even so, the delegates to the Philadelphia Convention went well beyond their brief. Rather than simply improving on the Articles of Confederation, they instead ended up drafting a new Constitution that would form a more perfect union between the states. Many people today, especially Americans, tend to believe that this Constitution emerged fully formed from the heads of the framers. In reality, as the notes of the convention taken by James Madison make clear, the room in which they worked became a veritable sausage factory of political deal-making.

The Federalist papers were an attempt to sell the resulting sausages to the American people during the ratification process that followed. On the other hand, despite the papers’ purpose as propaganda, never has political hackery contributed so much to Western political thought.

The papers offered wise and sometimes profound meditations on the human political animal that ventured far beyond their limited purpose as defense of a particular constitution. They were also very persuasive, although at the time their persuasiveness lay as much in the fact that they were published in such rapid succession — often three per week — that opponents hardly had time to reply. Anti-federalists simply couldn’t keep up with the fertile minds of Hamilton and Madison.

I say “Hamilton and Madison” while leaving out Jay because in reality the latter only ended up penning five of the papers (numbers 2, 3, 4, 5 and 64), before dropping out of the project due to ill health. Thus, of the other numbers, Hamilton authored fifty-one, Madison authored twenty-six, and the remaining three were co-authored by the two of them.

Federalist No. 1 was signed by “A Citizen of New York”. However, Madison then joined the team and he was a Virginian, so every paper thereafter was subscribed “Publius”, the name taken from one of the founders of the Roman Republic, Publius Valerius Publicola (Publicola = “friend of the people”). Since there were eighty-five papers altogether, there isn’t space here for a thorough analysis of all of them, or even for anything like a comprehensive overview. Instead I will discuss three sample papers, the first two of which are stand-alone classics of political theory.

Federalist No. 10 (Madison)

Number 10 is a tour de force of republican political argument and is possibly the most famous of the Federalist papers. It has also become a canonical text for the so-called “public choice” school of economics, of which I consider myself an amateur devotee.

Public choice economists such as James M. Buchanan have criticized mainstream economists, who too often adopt the standpoint of policy adviser to some benevolent despot (i.e. government). Buchanan has spent much of his career arguing that the despot is neither benevolent nor disinterested, and that this fact must be taken into account when designing or proposing to reform political institutions. Buchanan professes himself to be a follower of Madison, who in Federalist No. 10 (and elsewhere) argued that there is no such thing as a disinterested legislator. For one thing, a legislator is a human being (or a group of them), just like anyone else, so why should we expect that he alone would be exempt from the self-interest that motivates the rest of us? As Buchanan would put it, government is an actor in the market, not a spectator standing outside it.

For another thing, legislators legislate, and all legislation involves taking sides. Legislation is not impartial. And because it is not, we can expect the realm of politics to be a battleground where competing interests duke it out. The most that can be hoped for is that the battle remains more or less civilized. In the pursuit of their competing interests, people will form factions. As long as people are free to pursue their ends, competition and factions are natural concomitants of a free society:

“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life because it imparts to fire its destructive agency.”

In other words, there are no utopias in politics.

It was common for eighteenth-century political thinkers to abhor factions or parties, as these were signs of interest, and politics was ideally supposed to be disinterested and public-spirited. But for Madison, the pursuit of factional self-interest was natural, and since there was no impartial agency that stood outside the fray to mediate, the best that could be hoped for in a free society was to have well-designed institutions that could limit the damage factions can do:

“Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side, and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are and must be themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail…. The inference to which we are brought, is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.”

This is especially necessary in a democracy, where there always looms that most dangerous of factions, the democratic majority. Imagine a democracy of three people, A, B, and C. It is always a possibility for A and B to form a voting bloc to deprive C of his wealth or rights or liberty. The best way to avoid this outcome is to have institutions and constitutional constraints which prevent A and B from effecting their intentions. Such a constitution may provide for a list of protected rights and liberties that may not be infringed upon by a democratic legislature. Or it may provide that in order for anyone’s rights to be infringed, unanimity is required. Or it may give citizens of C’s description two vote to compensate. Or it may provide for more than one legislative house, with different rules of representation to ensure that one may act as a check upon the other.

 Whatever the precise constraints a society chooses, Madison’s point is that men are — or should be assumed to be — imperfect and selfish creatures, and that there is no power that can be assumed to be impartial. Interest must oppose interest because there is no disinterested power to oppose it. These considerations lead naturally to a discussion of Federalist No. 51, another great masterpiece by Madison.

Federalist No. 51 (Madison)

Because humans are self-interested, and because their interests often clash, there must be some power that can restrain their pursuit of interest. In most political theories, this role has been played by government. But governments are composed of human beings, so they too are subject to the same self-interested motivations and must be restrained. As Juvenal rightly asked, sed quis custodiet ipsos custodes? (“But who will guard the guardians themselves?”). Here is how Madison famously stated the paradox in Federalist No. 51:

“But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, to oblige it to control itself.”

One of the ways of doing this was by a constitution which provided for separation of powers and functions in different branches of government, branches which could act as checks upon one another. It is this that has become the central hallmark of Madisonian republicanism. But just as Madisonian is his encouragement of pluralism: The more groups and subdivisions there are, the less likely it is that any one of them can form a majority and overpower the others. In our three-person democracy, it is very easy for A and B to form a faction to prey upon C. But in what Madison and Hamilton called an “extended republic” a vast number of citizens can form a vast number of factions, no one of which is likely under those conditions to become powerful enough to dominate the others.

This line of thinking informs Madison’s reflections on the separation of church and state. For example, regarding religious pluralism, even though Madison was probably the least religious of the Founding Fathers (he may even have been an atheist), he encouraged freedom of worship because he wanted as many religions to flourish as possible: the more of them there were, the less dangerous they would be to the state. With no single religion having any hope of dominating over the others, religious groups would spend less time trying to take over the reins of government, and more time making jealously making sure that no other sect tried to do so.

Federalist No. 72 (Hamilton)

This work of Hamilton’s is part of a running argument defending a strong executive branch. This is in response to anti-federalist arguments that an executive magistrate should only hold power for a brief term and should not be subject to re-election. It is to the topic of re-election that Hamilton’s attention turns in this paper. I chose to look at this piece because it well illustrates the Federalist’s adeptness at designing republican institutions through incisive analysis of the springs of human political behavior and the incentive structure of political office-holding. In other words, beginning with how humans can typically be expected to behave in political contexts, institutions are proposed that, in the words of Hamilton, best balance the “energy of government” with the “liberties of the people”.

This tension between strong government and individual liberty would in the coming years be reflected in the growing tension between Hamilton’s and Madison’s respective views of republican government. Hamilton tended to stress the necessity of energetic government, seeing a strong federal government as the guarantor of individual liberty (while implicitly viewing the state governments as liberty’s greater threat). Madison, on the other hand, had a growing jealousy of energetic government’s ability to trample on individual rights. His solution was to weaken government through intricate institutional checks and balances, having power oppose power. Despite their collaboration in 1787-88, Madison and Hamilton a rift would eventually form between the two men that was never healed. But the rift still lay in the future when Hamilton wrote Federalist No. 72.

Excluding the executive from seeking re-election would have several pernicious effects, argued Hamilton. For one thing, it would reduce the magistrate’s incentive to good behavior; since he had no hope of being re-elected, he had less incentive to be exemplary in the performance of his office. “There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them.”

In addition, Hamilton argued that the exclusion from re-election would result in a more urgent temptation of the office-holder to make the most of his short time in office financially: “An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory.”

A greater danger than peculation was the possibility of usurpation. An unscrupulous magistrate might simply decide he doesn’t want to give up his office. Without any hope for continuance in office, “such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty.”

I have personally been favourable to limiting the tenure of elected officials to one term, of whatever the length. One of the reasons I have favoured such a policy is the notion that the officeholder would be more independent and willing to make hard decisions if he did not have to worry about re-election. To this, Hamilton conjectures that such a magistrate might actually be just as inclined to pander to the public as one with an eye on re-election, since at the end of his term he would be compelled to return to the people as a private citizen: “May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.” This argument may have been more convincing in the eighteenth century, when a gentleman ran in smaller and more localized circles than the typical politician does today. I am not convinced by it.

Finally, and most dangerously, there may be times where the people themselves wish the person to remain in office. What happens when the wishes of the people for a favourite son are thwarted by such a rigid constitutional restraint? “There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege.” Hell hath no fury like a mob scorned. The people may simply decide to pull down completely the constitutional barrier separating them from their fancied man. Again, I do not find this argument of Hamilton’s overly convincing. Organized collective action of that nature takes considerable effort and enough time that the fickle mob is likely to grow indifferent to their erstwhile favourite.

Despite their later divergence in thinking, Hamilton’s approach is similar to Madison’s in assuming that human beings are largely self-interested and that because politicians are humans too, they should also be assumed to be self-interested. Institutions cannot be designed as if people are angels. Instead, writes Hamilton, because “the desire of reward is one of the strongest incentives of human conduct… the best security for the fidelity of mankind is to make their interest coincide with their duty.”

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