The Spirit of 1798, and Ours

The contributions to the Spirit of 1798 exchange are just terrific. They raise some very deep and to my mind disturbing questions.

One of them is suggested by James Read’s admirably hard-headed post: with the (arguable) exception of 1798, can anyone think of any example in our history when states—collectively—have served as instruments in defense of the rights of “the people themselves” and against an overbearing central government? If the answer to that question is “no” (as I think it must be), doesn’t that suggest that there is something wrong with Madison’s theory, with the way we understand it, or with both?

If you follow the logic of The Federalist, it becomes hard to explain why you would expect states to be bastions of liberty in the first place: at least in the context of ordinary politics, the feds will be better-behaved than the locals, both because of the way they are elected and because they will operate in a carefully wrought system of checks and balances. So if the states resist, it’ll be in defense of parochial and oppressive schemes and precisely not the rights of the people.

The non-conforming scenario I think Madison had in mind (at least in the Federalist) is a kind of domestic 1776: states might make a fine institutional platform for organized (and perhaps armed) collective rebellion against a distant, oppressive power. But how coherent is this? If some oppressive force (Federalists, New Dealers, Republican theocrats—pick your enemy) manages to dominate national politics, it stands to reason that it will also dominate some and probably most states. So as James Read notes in passing, the states will be split. It’s hard to see how the Madisonian scenario could play out.

Historically, the scenario that has played out is this: state power has served as an impediment to national authority when (and because) states have been split along sectional lines. My earlier posts on that subject appear here. That dynamic is very different from Madison’s theory, and whether it has served the rights of the people is highly debatable.

Here’s a second, related question, or maybe a different way of getting at the same question: I think it’s common ground that Madison didn’t want states to possess any formal, institutionalized veto power or right of resistance against the national government; that marks the crucial difference between him and the nullifiers. In any event and in Madison’s parlance, the Constitution contains no formal means by which state “ambition” can “counteract” central ambition. But what of the states motives to protect their empires? States as states—that is to say, their officials and political elites—surely have that impulse. However, putting aside that the Madison of Federalist 45 (and the Hamilton of Federalist 1) railed against paying any heed to their parochial concerns, there is no reason to think that the politicians empire-protective motives will reflect the will of “the people themselves.” Let’s say the people can monitor their state agents and their federal agents: what will the agents do?

If they can get away with it, they will collude among themselves and against their masters. The term of art for this phenomenon is “cooperative federalism”—intergovernmental fiscal and regulatory arrangements that make it impossible to assign responsibility for lousy results and to fire the bastards: you don’t know who they are, they all blame each other, and in any event you can’t fire them all at once. (For evidence, visit your local school district.) The schemes leave the people worse off—and their agents at all levels better off, because they can all evade the accountability they loathe.  Put differently, public empire-building motivations may produce institutional collusion as well as competition, just as private profit-seeking may produce cartels among rival firms. However, in Madison’s entire framework, that just doesn’t happen. It’s the constitutionally unprovided-for case.

The fact that it is (alas) the world we live in prompts a third, likewise related, and mercifully final question: where does this leave “the people themselves”? The point of Madison’s 1798 position, Todd Estes writes (channeling Colleen Sheehan), was that the structure of the “compound republic” would offer “the people themselves” adequate and effective recourse, without resort to Jeffersonian and extra-constitutional means. But what if that structure has collapsed? Look at Madison’s careful, near-fastidious explication of the compound republic in Federalist 39: would you still say that the national government’s powers are “federal” (meaning limited) in their extent; or that they are “national” (meaning direct) in their operation? The reality is that an effectively unlimited central government acts, at least domestically, mostly through the states. And the overwhelming sense of the people seems to be that they can’t do a whole lot about the intergovernmental conspiracies that wash over them.

The point of these thoughts, obviously, isn’t to dismiss Madison on 1798 or any other point—quite the contrary. Even when he is wrong or when his theories have been superseded by events he could not possibly foresee, he is eminently worth serious intellectual engagement. In fact, our constitutional debate would be a whole lot better if you could re-learn how to think the way he did—with a keen eye on political economy and incentives, yet an acute awareness that that’s hardly all there is to politics, or for that matter life. I’m grateful for the company of scholars who know the great little man and his works a whole lot better than I do.