Things We Read Today (Jemmy Madison on Prop 8 Edition)
Or why ballot initiatives are a reactionary idea. Last night I was reading Garry Wills’ book-length essay on Madison, and I got to the discussion of the famous Federalist No. 10, Madison’s big argument in favor of adopting the Constitution. It is in large part concerned with why representative government is superior to direct democracy, and the more representative–that is, the less direct–the better. We start with Wills:
He did not say, as many did, that direct democracy would be wonderful if it were possible, but, since it is not possible in large communities, some approximation to it must be cobbled up. He did not think direct democracy wonderful. He thought it fundamentally unjust.
“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine?”
By calling legislation quasi-judicial, he instantly disqualifies all those who come to the task of legislating with nothing but their own interest in mind. They have come to be judges in their own case–and that is what proponents of direct democracy would justify. In doing so, they defend a system of majority tyranny. If naked interest is all that can be expressed, then only one thing will determine the outcome. The only question to be decided is: which interest has the greater number backing it.
“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. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.”
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Let us conclude by quoting some comments on factions that Madison made, not commented by Wills.
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
…A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.
…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. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. 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. 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.
How do you do that? According to Madison, you “refine and enlarge 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. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.”
Nice thought. I guess it does work, though, especially with bicameral legislatures, where two distinct bodies of people have to be convinced that something is a good idea. Seems to me that these ballot initiatives actually dial back the cause of representative government a great deal, and actually roll back the whole reason that Madison wanted a stronger government than existed under the Articles of Confederation: the power of majorities “to invade the rights of other citizens.” We’re supposed to think these things through at a remove, through our representatives.
