The Constitutional Union

1. The Constitutional Union America’s “Experiment” in Self-Government

2. The Collapse of the Articles: Lessons of the Post-Revolutionary/Pre-Constitutional Period • After they declared independence from Great Britain and won the Revolutionary War, the Colonies attempted to create a loose confederation which they called the Articles of Confederation. • The Articles of Confederation attempted to create a kind of treaty organization between the various states, a voluntary league for the sake of defense. • The result was disastrous anarchy in the relations between the states: states were unwilling to supply money or troops to the Federation, debts went unpaid, states became vulnerable to foreign attack, commerce stagnated, and in some cases member states were on the verge of war with each other. Moreover, the congress created by the Articles was powerless to correct these abuses. For instance, if Maryland refused to pay taxes what could it do? The only option it had would be to send in troops. In other words, the only way to enforce its decisions would be to start a war. • The other important lesson learned from the Articles of Confederation period was the potential instability of democracy. Debtors’ revolts, hyper-inflation, etc. Taught the founders that, to be stabile, democracy had to be tempered

3. Government by “Reflection and Choice?” • “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” (Hamilton, Federalist #1) • The question then, that America announces it will answer, is whether any given society of men is capable of creating for itself in a rational manner that government that will best secure its peace and happiness. It is the great “experiment” in rational self-government.

4. Democratic Danger • To succeed in creating a government from “reflection and choice,” Hamilton now tells the people that they must overcome that danger to which they are most prone: democratic tyranny. • “A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues, and ending tyrants.” Hamilton, Federalist #1 • The obstacle to erecting a stable government from reflection and choice is the people’s own tendencies. Their tendency is to let themselves be flattered by demagogues making promises to them solely for the demagogues’ own aggrandizement.

5. Federalist #8: Only a Strong Unified Republic can Preserve the People’s Freedom and Commerce • “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.” Hamilton, Federalist #8 • The love of liberty itself requires a strong nation that can keep the people secure. If the people’s love of liberty allows them to keep the national government weak, the attendant dangers created by conflict between the states will, in the end, cause the people to sacrifice their treasured liberty that much more for the sake of security. • Second, Hamilton argues in this that the people should accept the proposed strong national government because the alternative is entire nations of soldiers: “The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers.” Thus, so as to preserve their commerce and increase it, Hamilton will argue, they should accept the strong national republic. Such will free them from the dangers attendant upon weak states vying with one another for power.

6. Federalist #10: The Solution to Majority Factions • What is a faction? • “By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” • Two Cures

7. Remove the Causes of Faction • Two Methods of Removing the Causes: • 1) “by destroying the liberty which is essential to its existence • 2) “by giving to every citizen the same opinions, the same passions, and the same interests.” • Problems with these two solutions • 1) remedy is “worse than the disease.” “Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be 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.” • 2)”The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. • The “causes of faction are thus sown in the nature of man.”

8. The Permanence of Factions • Madison argues that not only are factions “incurable,” their regulation forms one of the principle tasks of modern legislation: “The regulation of these various and interfering interests forms the principle task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.” • One also cannot count in the future on “enlightened statesmen” to render all these “clashing interests” “subservient to the public good. • So, factions can’t be gotten rid of by hoping that people learn to embrace the public good instead of their private interests. They’re a permanent feature of modern society.

9. When factions become dangerous • Danger of faction exists only if it is a majority faction: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. • “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”

10. What is to be done? • “To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.” • The chief question is how to secure private rights within a majority-rule government that has the potential for the majority to use its power to suppress the rights of minorities within the society.

11. Pure, Small Democracy: Bad Solution • Why? • “A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”

12. First Good Cure: Republican Representation • Begins to cure problem because it “refines and enlarges the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” • Still the danger exists that they’ll not do this, so….

13. Second, Good Cure: Extended Republic • Madison now defends the extended republic as the cure to the problem of majority faction for which he has been seeking. • “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probably that a majority of the whole will have a common motive to invade the rights of other citizens; of if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”

14. Federalist #51: Separation of Powers • “Separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.” How so? • If too much power becomes concentrated in one department of government, it can potentially become abusive. • So, must contrive a manner within which the various department check one another’s power. How do you do this? • Provide different power sources for the members within each department. So, Congress is elected separately from the President and the Judiciary’s power is separate from both. This is what it means: “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” • “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Concrete examples? • A legislator has an interest, even if of the same party as the president, in resisting, at times, the president’s initiatives and vice versa.

15. The New “Science of Politics” • Madison writes: “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” • Madison’s attempt is to show how you can create a working government if you merely design the institutions properly and then count on nothing other than men’s ambition. This is necessary because as he says in Federalist #10: “Enlightened statesmen will not always be at the helm.” • Madison begins from a very realistic view of human nature and then tries to show how, based on nothing other than that realistic view, you can get good government. • It’s a “science of politics” insofar as it argues that an accurate and realistic knowledge of human nature and careful institutional design can produce good government.