Although constitutional norms are essential to the functioning of our country, they are under serious attack.
America is often thought of as a test of the people’s capacity to govern themselves. Our Founders spoke in those terms. George Washington, giving the country’s first presidential inaugural address, said: “the destiny of the republican model of government” is “deeply . . . staked on the experiment entrusted to the hands of the American people.”
But the paragraph containing this famous phrase indicates the problem. In it, Washington refrains from recommending specific legislative measures in deference to “the talents, the rectitude, and the patriotism which adorn the characters selected to devise and adopt them”—by which characters he meant the members of Congress. In Congress, he declared,
no local prejudices or attachments, no separate views nor party animosities, will misdirect the comprehensive and equal eye which ought to watch over this great assemblage of communities and interests.
According to Washington, “the foundation of our national policy will be laid in the pure and immutable principles of private morality” possessed by the people who elected those representatives. In short, the experiment in self-government would work because the American people followed the principles of private morality, and their representatives dedicated their wisdom and virtue to promoting the national good. There was no need for the chief magistrate to exert executive leadership over the legislature, for the people could be trusted to govern themselves.
Whether or not Washington’s assessment of the First Congress was accurate, few Americans would consider today’s Congress to be bursting with talent, rectitude, or patriotism. And surely few would suggest that “no local prejudices or attachments, no separate views nor party animosities, will misdirect the comprehensive and equal eye” of Congress toward the commonweal.
Instead of Washington’s confidence in the people and their representatives, we hear with some frequency that the American experiment has failed, is failing, or is under serious stress. Consequently, instead of Washington’s entrusting policy matters to legislators, we witness with great frequency the replacement of legislative deliberation with executive action.
Is this trend reversible? Can the American people self-govern, or has this experiment failed? I submit that this tension between, on the one hand, a politics of civic virtue and legislative deliberation, and, on the other, a politics of clashing interests and views has been present in our constitutional system from the beginning. It was never, to my mind, resolved by the Framers of our Constitution. They never advanced a robust theory of majority rule or a way to conduct legislative deliberation and forge consensus. Today, as the politics of civic virtue yield increasingly to the politics of clashing interests and views, we must figure out how our institutions can be bent toward producing civic virtue. What is needed is that we rediscover, and defend, the institutional mechanisms that foster deliberation, compromise, and consensus by representing diverse interests and views.
Publius’ Negative Theory of Majority-Formation
Also key to establishing the idea of America as an experiment was The Federalist. In Federalist 39, James Madison wrote that only a republican form of government is compatible “with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”
Though it is relatively clear that both Washington and Madison believed the experiment could succeed, consider how much of The Federalist cuts against this confidence. The most famous of the Federalist Papers puts little stock in the people’s capacity to advocate public policies that promote the common good as opposed to narrow interests. Popular government, Madison explains in Federalist 10, is dominated by faction—that is, by passions or interests adverse to the rights of others or to the common good.
The Constitution’s solution to this problem is not to suppress these tyrannical impulses but to multiply and utilize them, particularly in Congress. The legislature is intended to contain and represent all of the factions, setting up a complex contest in which many potentially-tyrannical factions pursue their own interest and attempt to impose their will upon others. Representation of localities in districts, as opposed to national proportional representation, in other words, pits factions against each other as a solution to the problem of majority rule. True, Madison claims representatives will “refine and enlarge the public views,” but he also explains that in clashes of interest, “what are the different classes of legislators but advocates and parties to the causes which they determine?” In other words, Madison seems to expect legislators not to refine and enlarge the public views, but to be advocates for and parties to the factions that they are representing.
This points to two obvious problems, for which Madison has no answer in The Federalist. One is that Madison does not describe exactly how a good majority—one that promotes the common good as opposed to a faction—emerges from this process. In Federalist 51, Madison merely asserts that “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of the majority of the whole society could seldom take place on any other principles than those of justice and the common good.”
He does not describe how the desirable “coalition of the majority of the whole society” will occur. After all, the whole point of the extended republic, and representation of many factions, is to prevent coalitions from happening in the first place. In this scheme we should not expect legislators to abandon their local interests for the sake of some common, national interest (as any student of ethanol mandates or military-base closings understands). Madison, in other words, has only a negative theory of majority-formation: he indicates how bad majorities can be prevented, but not how good majorities can emerge.
The Problem of Majority Rule
The second problem has to do with deficiencies in Madison’s negative theory of majority-formation. He assumes that multiplying the number of factions and providing them with representation in the legislature will prevent majority factions from taking control. But experience has shown that this is not a perfect solution; factions are often willing to organize and combine in order to give each faction some or most of what it seeks.
In his posthumously published treatise, “A Disquisition on Government” (1851), John Calhoun advanced this criticism of Madison’s theory. The reason that governments tend to abuse their powers, he argued, is that “they must be administered by men in whom, like others, the individual are stronger than the social feelings.” Like Madison, Calhoun saw that
the right of suffrage, by placing the control of the government in the community must . . . lead to conflict among its different interests. . . . For this purpose, a struggle will take place between the various interests to obtain a majority, in order to control the government.
Each understood, in other words, that the self-interested nature of human beings means that a popular government will involve different interests vying for supremacy. But where Madison believed there could be “a republican remedy for the diseases most incident to republican government,” Calhoun saw this self-interestedness as an insurmountable challenge to republicanism. Because interests are adept at logrolling and horse-trading, Calhoun observed, “a combination will be formed between those whose interests are most alike—each conceding something to the others, until a sufficient number is obtained to make a majority.” The majority that would emerge would not be devoted to the aggregate interests of the community but to the most optimal outcomes for the greatest number of interests.
For this reason, Calhoun essentially concluded that self-government was undesirable, at least in a complete sense. The majority would have to be limited, and limited severely, by affording each interest a veto against all of the others, in order to prevent injustice. Where Madison saw a republican solution to the problem of republican government, Calhoun saw need of a more radical departure from the principle of majority rule.
A Positive Theory of Majority Rule
Notwithstanding this vast difference between Madison and Calhoun on the question of majority rule, they shared, as mentioned, the belief that it was driven either largely or entirely by conflict among self-interested factions. Both believed that solving this problem was central to the question of vindicating majority rule and the American experiment in self-government.
Yet neither offered a completely satisfactory solution. Madison, as we have seen, does not provide a robust account of how a majority devoted to the common good will be formed, given the incentives in his system, nor does he sufficiently account for the problem of interests combining to form a majority on the basis of faction. Calhoun’s concurrent majority, which gives each interest a veto over all of the others, is obviously unworkable and would clearly eventuate in a completely gridlocked and ineffective legislature.
Our inability to articulate and defend a reasonable theory of majority rule is the source of great political ills—from “not my President,” to our inability to forge consensus through reasonable compromise, to the administrative state itself, which thrives on the inability of Congress to address specific policy questions. Addressing the problem that Madison and the Founders left unresolved is critical to restoring faith in our democratic republic.
Constitutionalists have been insufficiently attentive to the practical challenges of letting the majority have its way while ensuring that the majority governs for the good of the whole.
In large measure this is because the practical challenges involve sophisticated analysis of the institution that most embodies the principle of majority rule in our political system: the Congress. Constitutional scholarship on the executive and judicial branches vastly outstrips constitutional scholarship on the legislature. Scholarship on the legislature is typically left to conventional empirical political scientists. (Just ponder: if you wanted to teach a seminar on the Constitution and the courts, or the Constitution and the presidency, how many more books you could select for your syllabus than if you wanted to teach a seminar on the Constitution and Congress.)
One political scientist, sadly overlooked, who dedicated much of his work to understanding the problem of majority rule was Willmoore Kendall. He understood it to be “the central problem in modern politics and of modern political theory,” and he attempted to address that problem in writings such as his 1940 book, John Locke and the Doctrine of Majority Rule. He is the thinker who most directly addresses the problems confronting the American republic in the 21st century.
The Virtuous Majority
Kendall (1909-1967) was widely regarded by those who knew him best as a conservative populist. What distinguished him from every other major conservative theorist was his faith and confidence in the people, an attitude that frequently placed him at odds with his conservative contemporaries. His work consistently focused on two themes: first, the idea of a virtuous and engaged citizenry, and second, the institutional arrangements that best promote virtue in citizens and deliberation in the legislature.
The first theme is central to one of Kendall’s most famous books, Basic Symbols of the American Political Tradition, which he coauthored with George W. Carey. Published in 1970, three years after Kendall’s death, the book argued that America’s foundational principles are derived not from the Declaration of Independence but from a pre-Lockean historical tradition, expressed in documents such as the Mayflower Compact and the Massachusetts Body of Liberties. Religious objectives are explicitly declared to be the end or purpose of civil society in these pre-Lockean documents. They clarified that the principle of majority rule must be tempered by standards beyond the majority’s assertion of its will.
Kendall and Carey showed that, to borrow a phrase coined by Peter Lawler, the Founders used other sources to “keep Locke in the Locke box.” The best way to reconcile majority rule and justice was to produce and sustain a virtuous majority.
The kind of civic virtue Kendall identified as critical to the success of majority rule was not simply dedication to higher law and religious principles. It also had to do with civic engagement and community. Like the classical republicans who interpret early America as dedicated to collective deliberation and civic virtue, Kendall thought that America had solved (and could continue to solve) the problems of majoritarianism through its citizen engagement, initiative, and public-spiritedness.
These virtues—engagement, initiative, public-spiritedness, devotion to community—have been heavily eroded by developments that we are only now beginning to understand. Grappling with these developments and understanding how to preserve civic virtue in the face of them must be a priority for anyone seeking to vindicate our experiment in self-government. But reliance on civic virtue, by itself, cannot vindicate that experiment. That takes us to Kendall’s second, institutional theme. The crux of the matter here is not whether we have sufficient virtue to govern ourselves, but whether our institutions channel what virtues we have to positive ends.
The Presidential Versus the Congressional Majority
Here again Kendall’s insights can spur our thinking. In “The Two Majorities,” an article that first appeared in 1960 in the Midwest Journal of Political Science, he noted that we cannot speak simply about “the majority” in America. Instead, we must realize that majorities can be organized along different principles and, in particular, can be represented in various ways. How the majority is represented, therefore, will determine to a great extent whether it is a virtuous one at all. In turn, institutions can promote (or undermine) a virtuous majority depending on how they channel that majority into governing institutions.
“The Two Majorities” posited a difference between the majority that the President of the United States represents, and the one Congress represents. In a diverse republic with many different interests, the President’s majority, Kendall argued, is based on simplistic answers to complicated policy questions, articulated in 30-second answers to issues that do not admit of a binary solution. More dangerously, the President’s majority is often not even tied to any policy whatsoever, but is plebiscitary—that is, tied to the personality or image of the individual. In short, the President’s majority—regardless of whether or not the citizens who compose that majority are virtuous—is a willful majority that oversimplifies and is therefore is unable to forge meaningful consensus in response to policy challenges.
By contrast, Kendall argued, congressional majorities reflect the diverse interests of the country’s geographic regions, forcing a process of deliberation and compromise to produce broad consensus. Owing to the fact that multiple parties and viewpoints are represented in the legislature, the majority is forced to win the consent of the minority, or at least is checked and circumscribed by minority scrutiny.
The congressional majority is, by Kendall’s reckoning, superior to the plebiscitary presidential majority for several reasons: It is based upon policy rather than personality; it requires deliberation and the consensus that emerges in a system with many parties and perspectives as opposed to one with a single decider; and it reflects the nation’s diversity of interests and geography rather than trying to collapse that diversity into a single point of view.
For all of these reasons, congressional policymaking is preferable to presidential policymaking in that the former ensures a more deliberate, moderate outcome. As Kendall summarized it in “The Two Majorities”:
congressional elections . . . provide a highly necessary corrective against the bias toward quixotism inherent in our presidential elections. . . . And it is well they do; the alternative would be national policies based upon a wholly false picture of the sacrifices the electorate are prepared to make for the lofty objectives held up to them by presidential aspirants.”
The Serious and Deliberate Majority
The obvious problem with Kendall’s claim, of course, is the same problem Madison and Calhoun were never able to address adequately. Congressional majorities adopt this character only if Congress can operate in a manner that capitalizes on its virtues. It can only produce the wiser, more sensible majority if it has mechanisms for using pluralism to promote deliberation, compromise, and consensus. Without those mechanisms, Congress’ fragmentation into two houses, district-based representation, and staggered elections could disrupt deliberation and produce polarization rather than compromise.
Kendall’s most creative and sophisticated response to this problem was contained in an article that his coauthor Carey saw through to publication in the American Political Science Review in 1968, entitled “The ‘Intensity’ Problem and Democratic Theory.” Here Kendall argued that the Founders themselves distinguished between kinds of majorities—that is, “between ‘temporary’ or ‘snap’ or ‘frivolous’ majorities” and “what we may call ‘serious’ or deliberate’ majorities.” The Founders denigrated temporary majorities and favored the stronger and more stable preferences captured in “serious or deliberate” majorities.
The extended republic, composed of so many different interests, actually offers the best method for dealing with this intensity problem, according to Kendall. Bringing representatives from every part of the country together in a legislative assembly facilitates everyone’s understanding of the intensity of the views of other parts of the country. Kendall called these mechanisms “built-in facilities for correct reciprocal anticipations . . . of the intensity of each other’s reactions . . . to the alternative courses of political behavior open to each.” (Emphasis in original.) Obtaining these signals from other legislators will incentivize a majority to restrain itself. It does so by recognizing that its preferences are mild and temporary compared to the strong and permanent preferences of a minority. It follows that extended republics with many different interests must have “elaborate and complex ‘machinery’ to facilitate mutual knowledge and understanding of the kind here in question.”
Thus Congress should promote a culture in which representatives understand the preferences of the other interests in society, and restrain themselves in light of those preferences. Madison’s extended republic forces representatives to do this in order to accomplish anything. If their goal is to enact legislation that advances the interests of their members, they will have to know and understand the preferences of the other members, whose cooperation they will need to enact legislation.
Seen from this angle, Congress’ fragmentation promotes the kind of deliberative consensus that is conducive to self-government. But it is complex in comparison to the quick and blunt action of an executive, and a self-governing people must accept the inherent messiness of this legislative process.
This understanding of Congress’ pluralism requires us to refine our definition of a virtuous, self-governing citizenry. A self-governing people needs to be engaged, and capable of building real communities, but it also needs to have some respect for politics and for the political compromise that self-government requires. Deliberation in the legislature requires a virtuous citizenry to resist the simplistic appeals that characterize the presidential majority and to accept the difficulties inherent in the process of building legislative majorities. Congress’ rules and structure—often arcane institutional issues that elude the attention of constitutional theorists—can promote this process of deliberation if they build in Kendall’s “correct reciprocal anticipations.” Of course, the minority must also understand that abuse of those rules for the sake of obstruction will also erode their right to express their preferences and participate in legislative deliberation in the future.
Finally, that virtuous majority that Kendall identified in America’s Founding will have to enforce these norms of legislative deliberation. Instead of thinking of politics as a win-at-any-cost endeavor, the people will have to think institutionally to some extent, and reward behavior that preserves deliberation even if it detracts from the policy outcomes they seek to achieve. That so many today prefer to avoid the difficulties inherent in building a governing legislative majority indicates the most critical problem facing the American experiment. Americans can be trusted to self-govern, but they also must remember that self-government means valuing sound political process, and is not simply reducible to getting the right policy outcomes.
 Harry Jaffa describes this paradox in Federalist 10 in a fascinating unpublished paper entitled, “A Phoenix from the Ashes: The Death of James Madison’s Constitution (Killed by James Madison) and the Birth of Party Government,” presented at the American Political Science Association Annual Meeting in 1977.
 “A conservative populist of sorts” was the description used by George Carey, Kendall’s frequent coauthor, who probably knew him better than anyone. George W. Carey, “How to Read Willmoore Kendall,” Intercollegiate Review (1972), 63.
 Willmoore Kendall and George W. Carey, “The ‘Intensity’ Problem and Democratic Theory,” American Political Science Review 62 (1968): 5-24. Kendall remained the “lead author” of the article in spite of the fact that Carey refined it after it was accepted for publication. Moreover, in “How to Read Willmoore Kendall,” Carey wrote that this APSR article contained Kendall’s “final thoughts about majority rule and the American system” and explained that Kendall was “primarily responsible for [Section IV] of the article which he considered to be his finest theoretical statement on the issue relative to the American system.”