The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
My typical opening lecture on the Madisonian view of faction goes something like this: How many of you would vote to wipe out your student loan debt right now? Nine in 10 hands go up, I call the rest pathological liars, we chuckle and then, having reflected on the fact that the debts were honestly contracted and canceling them would dry up future credit and so forth, most hands go down. That is how Madison’s theory on factions works: Start with a boneheaded idea, stop and think about it, and common sense usually prevails.
James Madison never met Bernie Sanders.
Sanders—who attended James Madison High School in Brooklyn, for crying out loud—appears not to have read his alma mater’s namesake before leading the Democratic presidential field in proposing the cancelation of student loan debt. The locus classicus for factious legislation is right there at the end of Federalist 10:
[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.
One suspects reading Madison would not have dissuaded either Sanders or imitators like Sen. Elizabeth Warren. The real question is why Madison failed to predict either. The essential reasons are two: First, the architecture of Federalist 10’s argument assumes a national government limited to Congress’ enumerated powers rather than one involved in personal material welfare or detailed economic distributions. Second, he assumes an inability of impassioned ideas to spread on a national scale because the time required to do so will also dissipate the frenzies fueling them. Contemporary conditions moot both assumptions.
Limited government is implicit in Madison’s simple assumption—what he calls “the republican principle”—that majorities will outvote minorities. For this reason, Madison says, we need not worry about minority factions angling for economic advantage.
That is true as long as the national government is not involved in microeconomic distributions. Once it is, the political calculus changes. As Mancur Olson taught, the benefits of these distributions are concentrated while the costs are diffuse, so the incentive of majorities to engage in these debates in the first place is diminished. Simply caving and paying one’s portion of a small subsidy may cost less than the postage on a letter of protest to one’s member of Congress. The result is an inversion of the extended-republic theory of Federalist 10: The larger the republic, the more diffuse the costs of subsidies and the less the incentive to oppose them.
Moreover, the more complex government grows, the less voters can afford to spend their single votes endorsing or objecting to one among many items of government business. That diminishes the power of majority rule insofar as representatives who cast several hundred votes a year have no reason to associate a constituent’s ballot with any one of them. This dilution of the majority’s voice is a result not of the size but rather of the complexity of government. (I make this case in more detail in National Affairs here.)
Because benefits, once established, are difficult to revoke, this first assumption is unlikely to unwind. The second—that passions spread slowly in a large republic, giving them time to burn out—is certain not to. The reason is that technology and media have accelerated passions to warp speed and, crucially, enabled them to be sustained.
Sanders can stoke them constantly, and at no charge, simply by asking his Twitter followers such asinine questions as what it would be like for them if student loan debt was canceled. (What would it be like if ice cream was free? What would it be like to live in zero gravity? What would it be like to live in a John Lennon song?)
As a result, the nation is larger but passions spread more readily. Not only does the media environment allow passions to be sustained, it requires that they escalate. Declarative statements that used to end in periods slide into exclamation points and then multiple ones, all to express the same degree of intensity. Thanks. Thanks! Thanks!!!
The combined result is an emotional immediacy between elected officials and constituents that was foreign to Madison. For him, one advantage of an extended republic would be that the representatives could be chosen from among be the best of the best. Their job was to “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 like to sacrifice it to temporary and partial considerations.”
Madison proceeded explicitly to endorse a political elite whose judgment would exceed the public’s: “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.”
Those passages remind us that conservative populism is a dicey business, if not a contradiction. Denunciations of a particular elite are one thing; forsaking the very notion of an elite—the natural aristocracy of a Thomas Jefferson or a John Adams—is another. President Trump—whose latest Twitter broadside suggested that the Speaker of the House did not include bribery among the articles impeaching him because “her teeth were falling out of her mouth, and she didn’t have time to think!” (note the obligatory exclamation point)—may be appointing good judges, but he is not calling us to a Madisonian ideal.
Did Madison? If there is a flaw in Federalist 10, it is its reliance on political autopilot: Crank up the mechanism to the scale of a large republic, and the gears will operate from there. No virtue, not even any particular constitutional mechanism beyond representation, is required. George W. Carey, forgiving Madison for not anticipating contemporary developments, nonetheless wondered whether this assumption was enough:
Certainly Madison cannot be faulted for not having seen the true dimensions of the problems associated with factions. Perhaps more clearly than other theorists who preceded him, he saw their root causes. Yet, he can be faulted for not having urged upon his audience the observance of that morality necessary for the perpetuation of the regime he envisioned.
That regime depends, perhaps more than Madison recognized but certainly more than we do, on virtue. It depends, too, on an elite. In the absence of either, the logic of Federalist 10 collapses. We will have, at least, the anesthetics of presidents either abolishing our debts or encouraging our coarseness. Conservatives should beware either.