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Political Institutions Can’t Foster Virtue, They Can Only Channel Vice

In the July Liberty Forum essay, Joseph Postell boldly takes on the core problem of representative government: how a representative legislature can be made to serve the common good instead of the parochial interests to which its members are tied.

While the argument is strong—that congressional deliberation requires patience and tolerance of “inherent messiness,” and that the design of political institutions matters a great deal—none of the solutions from Willmoore Kendall that Postell proffers solves the problem. More critically, the idea that political institutions can foster virtue, civic or otherwise, is alien to the political thought of the Framers of the Constitution and tends to obscure the limits of political institutions.

Postell writes that the Framers failed to resolve the “tension between” a “politics of civic virtue and legislative deliberation” and “a politics of clashing interests and views.” In his words,

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.

James Madison’s argument in Federalist 51 for an extended republic exemplifies this inadequacy. Madison assumes that any majority in an extended republic composed of diverse interests will necessarily be established on the grounds of “justice and the common good.” Postell is unsatisfied, since Madison “has only a negative theory of majority-formation: he indicates how bad majorities can be prevented, but not how good majorities can emerge.”

Kendall’s writings  suggest an institutional path toward a “good majority” that serves the common interest. Postell summarizes Kendall’s solution, which involves heavy reliance on Congress as the proper locus of policymaking. It distinguishes “stable or serious” congressional majorities—good majorities—from ephemeral, passionate majorities based on factional interest. Here is more of Postell’s gloss on Kendall:

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.

Congress, Kendall argues, should be designed such that members are forced to listen to the concerns of their fellow members, and take their interests into account, harnessing the diversity of interests to serve the common good. Seen from this Kendallian angle, Postell writes, “Congress’ fragmentation promotes the kind of deliberative consensus that is conducive to self-government.”

Encouraging a culture of deliberation and reciprocal respect is no doubt desirable, but Kendall’s answer affords no practical fix beyond Madison’s call for an extended republic. Is Kendall suggesting a requirement for unanimity—which is to say consensus—to pass laws? He offers no concrete solution for the fundamental problem of representative government—and such a solution may not exist. There is no reason representatives will not, as John C. Calhoun warned, merely engage in logrolling and horse-trading. Calhoun’s pessimistic assessment is more convincing.

Postell is right that the Framers were not concerned with how to build a “good majority.” They thought every majority could potentially tyrannize over the minority. Consider the paradoxical aim of The Federalist. Supporters of the Constitution were arguing for concentrating power in a national government in an environment in which concentration of power was the ultimate political sin. They bent over backward to explain why the proposed Constitution would safeguard states’ independence and individual liberties, to try to allay the Anti-Federalists’ quite legitimate worries.

As Madison wrote in Federalist 47:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection [to the Constitution] is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

The “arduous balancing act” that Madison said they faced was to design, and promote, a national government endowed with enough power to allow for coordinated action in the general interest—but to restrict the uses of that power only to actions serving that interest (Federalist 37). According to the Framers, the legislature, specifically the directly representative chamber, was particularly to be feared as a source of majority tyranny. The institution of the Senate was designed specifically as a check on the House of Representatives, which would be tied more directly to the parochial interests of the people (Federalist 62). The Framers’ view of the problem was that an unchecked representative legislature would be a geyser of uncoordinated, whimsical, potentially tyrannical legislation. Checks to prevent concentration of power in the legislature—bicameralism and the executive veto, for example—were therefore essential. Rather than worrying about how to create a good majority, they placed hurdles before majority rule, requiring large or concurrent majorities for certain kinds of procedures.

Postell draws much too strong a distinction between Calhoun’s “radical departure from the principle of majority rule” and Madison’s constitutional design. Rather, as Daniel Patrick Moynihan noted in a defense of the Electoral College from the Senate floor in 1979, the idea of concurrent majority is “a pervasive and understood principle of the Constitution.” The purpose of hurdles to simple majority rule is, in Moynihan’s words, to gain some assurance that a law, amendment, or selection of a representative expresses “a clear preponderance of choice” rather than a factional or ephemeral majority.

Calhoun’s proposal for concurrent majorities to prevent injustice is right in line with the Madisonian design.

Turning to the second issue, the Framers were under no illusions that political institutions foster virtue. Rather, they sought to channel vice. Madison famously stated in Federalist 51 the premise behind the complex system of checks and balances: that “ambition must be made to counteract ambition.” True, Madison hoped the people would select virtuous representatives attuned to the common good—but the best that political institutions could be expected to do was to supply “precautions” against their vices:

The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. (Federalist 57)

The most important precautions were frequent elections and term limits:

The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.

Term limits may not be a panacea, but they constitute a specific institutional change that merits serious discussion, for it aligns with the Framers’ advocacy of precautions aimed at keeping representatives tied to their constituents’ interests.

Postell is right that there are unresolved tensions and problems related to the American experiment in self-government, particularly with regard to the legislative branch. Some of these have to do with the perhaps unavoidable “spirit of party” against which George Washington warned, and with the erosion over time of institutional checks and balances between the branches of government.

But if the need is for a greater stock of civic virtue, political institutions are an unlikely place to find it. Kendall’s first, non-institutional theme of “engagement, initiative, public-spiritedness, devotion to community” that Postell describes is more foundational and more promising. The Framers rightly thought the responsibility of instilling virtue fell to social institutions—chiefly families, schools, and religious congregations. Washington’s inaugural address, which Postell quotes, evincing no hint that political institutions foster virtue, declares  that these depend upon “private morality,” nurtured in these ancillary social institutions. Washington’s Farewell Address expounds further on the thesis that “religion and morality” are “indispensable supports” of free government.

Improvements in our national political institutions depend on improvements in civic virtue fostered by our social institutions, not the other way around.

Reader Discussion

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on July 25, 2017 at 10:51:03 am

This argument strikes me as wrong on several grounds.

For starters, James Madison can not and should not stand in for "the founders" or "the framers." That's a neat rhetorical trick--it even has a name: synecdoche. Sometimes it is legitimate, but not in this instance. I need to hear from a bunch of other guys before I can be persuaded: Roger Sherman, James Wilson, George Washington, Edmund Randolph, Benjamin Franklin, George Mason, just to pick a few at random. I think we would need to hear from some guys who were not at Philadelphia too: John Marshall, John Adams, Thomas Jefferson, Patrick Henry. All of them heavy weights. All of them serious political and constitutional thinkers.

More to the point, I think it is quite clear that some people who had something to do either with framing or ratifying the constitution did in fact look to public life to foster public virtue. Whether they were right to do so is debatable, but that they did so is not. I am thinking here in particular of Grand Jury charges, and of public support for religion in some of the states.

I am not sure it matters. Mr. Petersen is making an argument about the present. As such, grounding his claims in history may be unnecessary. Alternatively, he could shift his claims to restrict them just to Madison, and especially just to the Madison who contributed to the FEDERALIST. That would to my eye anyway strengthen the argument.

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Kevin R. Hardwick
on July 25, 2017 at 17:30:54 pm

Your point is well taken - drawing in others would strengthen the claim, though I reference Washington in addition to Madison. Adams I'm quite sure would also agree.

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Ben Peterson
on July 25, 2017 at 18:38:32 pm

Kevin:

Perhaps it is just the phrasing here, but I am confused:
"I think it is quite clear that some people who had something to do either with framing or ratifying the constitution did in fact look to public life to foster public virtue. "

By this, do you mean that these folks believed that public life, here read as Public OFFICE, would, by mere virtue of that position, foster virtue. In other words that Public service would itself lead to a more virtuous disposition / behavior?

Or are you saying that Public Life (and Office) ought best be used, or could / would be used, to foster virtue in the citizenry as well as Elected Representatives. In other words, that a principal charge of Public Office would be to encourage virtuous behavior / sensibilities amongst the citizenry AND the Representatives.

Taking us back to the present time, I find such an objective somewhat frightful.
a) It would appear that a large and ever increasing component of our Public Officials seem "hell-bent" on fostering "public virtue" - such as they may apprehend and define it. (Recall the thrust some years back to "nudge" the deplorables into accepting all manner of new behaviors now deemed to be moral and virtuous).
b) For a group of Framers, including the anti_Feds and associated players, that had the good sense to "secure" freedom of religion, press, etc, in response to some less than liberal policies and practices by the Crown (AND some State Governments), it would seem odd that they would look to Public Officials to foster virtue and morality DIRECTLY through the powers of their Office. (Heck, wasn't this the objection to Popery at the time?).

Again, I am unclear on your meaning here. Perhaps, it is something as simple as defining "virtue" (I know, an impossible task) as intended in your brief comment.

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gabe
on July 25, 2017 at 22:20:10 pm

Mr. Peterson seems to imply that “civic virtue” is discovered as “the common good.” There’s tension with “clashing interests and views,” perhaps about “the common good.” We need “deliberation, compromise, and consensus” that represents the diversity that drives the clashes.

Federalist 51 adds civic justice without a mechanism for majority control. It is suggested that Congress maintain civic virtue by constraining temporal, emotional majorities, yet accommodate diverse preferences. Congress is forced to listen so as to harness diversity for the common good.

However, mutual listening is assigned to the people who are willing to trust and commit to the purpose and goals stated in the preamble to the constitution. Willing people discover civic justice for the decades of their lives. The people of 2017 know exponentially more than the framers knew, yet, in the preamble the framers gave willing people the authority they needed to amend the articles of the constitution. It was impossible for the framers to imagine and provide for the future.

The preamble asserts that willing people in their states authorize a limited USA. The competition in 1787 was to continue with the Confederation of free and independent states (Treaty of Paris, ratified in 1784). But happily, on June 21, 1788, nine states ratified the preamble and the articles with the provision that the First Congress would negotiate and add a Bill of Rights. That day, the USA emerged as a nation, leaving four free and independent states.

Through the people’s neglect, the USA has expanded itself out of control---we suffer tyranny. Only willing people may establish civic justice according to the preamble.

Civic justice consists not of compromise or subjugation but of willing people iteratively collaborating for mutual freedom from oppression so that each person has the opportunity to acquire the liberty to pursue personal preferences rather than the dictates of a municipality, a tradition, an ideal or any other arbitrary human construct. The resulting “common good” is comprehensive safety and security, as described in the preamble’s purpose and goals. Dissidents to comprehensive safety and security are informed by the culture and constrained by statutory law. Civic justice is discovered from the-objective-truth rather than by conflicting for dominant opinion. The-objective-truth exists, and humankind works to discover and benefit from it. The-objective-truth does not respond to reason but is rationally utilized.

Mr. Peterson’s arguments for religion fail, both because religion seeks to justify intellectual constructs that do not conform to the-objective-truth, and because the literature he cites does not contain the words and phrases that support the claims. For example, while Washington’s inaugural address has the phrase “private morality,” it does not contain even tacit reference to families, schools, and religious congregations. It is important to admit that religious congregations in the South fired on the USA in April, 1861, causing the Civil War: Beware religious beliefs as civic justice.

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Phil Beaver
on July 26, 2017 at 09:05:22 am

Gave, Ben--

I have actually written on this, although not in an ideal form. See my essay on the ideal governor, regarding the effort to unseat Francis Nicholson early in the century, in the JOURNAL OF SOUTHERN HISTORY. See also my discussion of the political and religious thought of Edmund Randolph, in Dreisbach, Morrison, and Hall, FORGOTTEN FOUNDERS ON RELIGION AND PUBLIC LIFE.

Some of the Founders--those most influenced by Church of England--believed, first, that regimes predicated on popular sovereignty required civic virtue from citizens in order to survive over time; and second, that the most powerful force to promote civic virtue, or at least *a* powerful force, was emulation by inferiors of the example of superiors. In this formulation, it was especially an obligation of publicly prominent individuals--including especially those who held political office--to model correct habits and dispositions to the people. George Washington, Edmund Randolph, Patrick Henry, Edmund Pendleton, Richard Henry Lee, Henry Lee, George Mason, and numerous others all subscribed to this belief. Civic Virtue flowed from the top down.

Leaving aside the hierarchical nature of this idea, I think it survives in attenuated form into the present.

All best,
Kevin

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Kevin Hardwick
on July 26, 2017 at 09:40:38 am

Gabe--

Sorry for the confusion. Some of the Founders believed that good legislation--a properly framed system of law and the public order that ensued from it--would promote civic virtue. Others believed that the public example set by politicians was important.

Most of the Founders who advocated for public support for religion did so because they believed religion fostered *civic* virtue. Founders influenced by Scottish Enlightenment moral and economic thought believed that laws that promoted cosmopolitanism promoted a different kind of civic virtue. I find this fascinating--it's the focus of an ongoing research project.

So yes--for some of the Founders, it was about the comportment of the man in the office; for others, it was about proper use of public power, for example by passing the right laws.

Others, of course, advocated the positions Ben limns for us so nicely above. My objection to his argument is not his characterization of the thought of SOME of the Founders, but rather his suggestion that ALL of the Founders agreed with Madison. To my eye, at least when it comes to Virginia/Kentucky/North Carolina/Tennessee, Madison's position just was not all that influential.

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Kevin Hardwick
on July 26, 2017 at 15:38:21 pm

Kevin:

Thanks for the clarification.

The notion of comportment makes sense and is consistent with my perception of those Founders.

"Leaving aside the hierarchical nature of this idea, I think it survives in attenuated form into the present. "

Agreed - if observed only in the breach today.

As for cosmopolitanism & civic virtue:

Perhaps, you can share those thoughts with us one day.
Also, a question re: cosmopolitanism:

Would you say that what was once cosmopolitanism has morphed into a (certain distasteful) "universalism" and how would that affect the promulgation / inculcation of "civic virtue."

Anyway, again thanks for the response.

take care
gabe

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gabe
on July 27, 2017 at 15:12:24 pm

Don't get me wrong, I have the greatest respect for the scholarship and knowledge of the authors in this blog, but once again I find myself disappointed by the authors' lack of modern knowledge about the democratic electoral process.

The problems with the US Congress are very much centered in the technical processes of voting.

The first problem is with the plurality voting used to select office holders and then within Congress to vote on issues. Plurality voting works poorly at best. Other voting techniques work much better, most notably score voting. An interesting example of score voting working well can be found at http://unu.ai. By using their quirky approach they correctly predicted a number of events with surprising accuracy. They predicted:

Trump would be the Republican nominee for President.
The 2016 Kentucky Derby Superfecta-the 1st, 2nd, 3rd and 4th place finishers. They were off by one horse for the 2017 Superfecta.
Exceptional predictions of baseball wins.

What Una and numerous other formal studies have shown is that score voting works very well with decision making while plurality voting does not. Yet, plurality is what we use for governing.

Another issue not foreseen by the Framers, but also well know among today's electoral scientists, is the tendency for single seat elections to produce a two party system of government. It is a recipe for a divided society. It's that simple.

Another problem, one discussed by Gilens and Page of Northwestern, is the problem of policies not matching the opinions of the electors, but rather the opinions of the wealthiest citizens. Democracy tends to be dominated by the wealthiest. Part of the reason for that, I would suggest, has to do with an excess of transparency of the votes and activities of the legislators. It is difficult to act on conscience when a ton of money is going to press against your reelection for doing so.

The continued focus on the thoughts and opinions of the Framers, while interesting and useful in some contexts, is not especially constructive when examining current issues in light of current knowledge about democracy and democratic practices.

I love to read about the framing of the Constitution, and I'm sure we can glean a few useful insights from the Framers ideas, but their ghosts are very out-of-date in their understanding of how democratic processes work.

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Scott Amorian
on July 27, 2017 at 17:25:49 pm

Scott--

I agree with the thoughts you express in your final two paragraphs. (I agree with much of the rest of your post too.).

Mr. Peterson's essay really makes two somewhat divergent points: one about contemporary political/constitutional arrangements, and one about the nature of the founder's political thought.

I can only speak to the second. But in some ways I think that my comments do a disservice to Mr. Peterson by distracting from his more important arguments.

At the level of law, originalism suggests we should care a great deal for the thought of the founders. But at the level of political and constitutional experience, we know have a great deal more years to draw on. If,as Patrick Henry suggested, we should be guided by "the lamp of experience," we have a considerably greater amount of it on which to draw than did the framers!

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Kevin Hardwick

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