If the Court is as partisan as David Leonhardt thinks, his remedies are useless or counterproductive.
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.