Federalist 43
In Federalist #43 Madison continued the themes of the prior essays: an examination of the detailed powers given Congress in Article I, section 8, while also addressing some additional powers. In the process he examines the important political question of the extent to which public policy might align with private goods or interests.
In some cases, he allowed, the question was not too complicated. Copyrights and patents, for example, benefit both the public good by encouraging innovation and private initiative and interests by allowing creative persons to profit from their work. The coalescing of private interest and public good was not an unfamiliar theme. Early in the century Bernard de Mandeville published his (at least partly satirical) Fable of the Bees, which included this famous passage:
T h u s every Part was full of Vice,
Yet the whole Mass a Paradise;
Flatter’d in Peace, and fear’d in Wars,
They were th’ Esteem of Foreigners,
And lavish of their Wealth and Lives,
The Balance of all other Hives.
Such were the Blessings of that State;
Their Crimes conspir’d to make them Great:
And Virtue, who from Politicks
Had learn’d a Thousand Cunning Tricks,
Was, by their happy Influence,
Made Friends with Vice: And ever since,
The worst of all the Multitude
Did something for the Common Good.
Adam Smith’s views concerning an “invisible hand,” also largely misunderstood, seemed to suggest that the pursuit of private interests could benefit the public as well. There’s a certain common sense rightness to that. Innovation, creativity, initiative, risk-taking and so forth contribute to the commonweal and are engaged in precisely because those taking the risks know there get to reap the rewards. The important thing to keep in mind is that when Madison referred to “self-interest” he didn’t do so pejoratively. He was simply making the observation that individuals could be counted on to pursue their own interests and there was nothing inherently wrong with that.
But that was not the only time when “the public good fully coincide[d] … with the claims of individuals.” The main intersection occurred over security concerns. The central function of any state is to protect the lives and properties of its citizens. Madison, again, repeats the arguments concerning how vital union and the concomitant move of consolidation were to security. The states, even if confederated, simply didn’t have the resources to provide the levels of protection required. But what’s true between individuals and the state is also true of individual members of the state. At what point does “security” become the trump card that overwhelms individual liberty or state sovereignty? How might political leaders exploit security concerns, or even deceive citizens concerning the nature of security threats, in order to augment power and whittle away at liberty?
Madison continued his examination of this “fourth class” of what he regarded as non-controversial powers. These included governance of the District of Columbia, the “asylum of the base, idle, avaricious and ambitious,” according to Cato, populated by sycophants and hangers-on who “possess a language and manners different from yours.” Like, Thomas Tredwell of New York observed that “The plan of the federal city, sir, departs from every principle of freedom, as far as the distance of the two polar stars from each other; for, subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share or vote, is laying a foundation on which may be erected as complete a tyranny as can be found in the Eastern world. … How dangerous this city may be, and what its operation on the general liberties of this country, time alone must discover; but I pray God, it may not prove to this western world what the city of Rome, enjoying a similar constitution, did to the eastern.” The seemingly non-controversial idea that the federal government would enjoy control of forts and magazines would find its most severe test at Fort Sumter, a likelihood Samuel Adams commented on in 1789.
Congressional powers also included the ability to punish treason, a power that seems sensible enough until you consider that consolidators of power tend to expand treason’s definition, a problem Madison believed the Constitution had fixed by offering an exact definition of treason.
He also treated as non-controversial the power to admit new states into the union. This too may seem like an obvious, even inconsequential power, until one gives it some thought. The most fundamental ways of changing a polity is to alter its fundamental law, change its demographic make-up, or to reshape it geographically. The writers of the Constitution gave a great deal of thought to the first means, but not nearly as much as to the second and third. Granted, as I argued last week, they did say that the Congress would create uniform rules of naturalization, and here Madison talks about the issue of state admission, but unlike changes to the Constitution neither of these would require a super-majority.
The consequences of this are obvious to us when we think about how political immigration policy has become. Here, too, the hope that political parties would not appear on the scene limited the framer’s imagination. The fundamental purpose of political parties is to win elections, and the way to win elections is to add numbers to your voter base. American parties are large-scale coalitions composed of different demographics, and so sudden shifts in population create intense competition among the parties. This can occur when you explained the franchise, such as allowing women or freed slaves or 18-year olds to vote, or when you liberalize immigration laws. I don’t think the framers understood how immigration politics would drive party politics.
Nor did they — if we examine the records of the convention — give that much thought to state admission. Under The Articles of Confederation Canada had an open invitation to join the union, but otherwise the admission of any new state would require a ⅔ majority. In 1784 Thomas Jefferson had put together a plan for governance of any westward expansion and had included in this plan a prohibition against slavery in any newly admitted state. Most of the debate concerned the separation of territory out of an extant state, and Luther Martin and Gouverneur Morris — strange bedfellows indeed — moved to eliminate the ⅔ provision. Martin had argued that the larger states ought to be severed, the Constitution tilting to their interests, while Charles Pinckney insisted that the plan failed in not allowing the larger states to swallow the smaller ones whole. The idea of requiring a supermajority for admission was not seriously discussed and this failure would become consequential when state admission drove the sectional crisis that led to the Civil War.
Neither would it seem controversial that the Constitution guaranteed to every state “a republican form of government.” This too, however, touches on a fundamental problem of democratic government: what if the people of that state prefer monarchy? Why should they not be allowed to have a monarchy, or a despot, or an oligarchy, if they so wish? Shouldn’t the citizens of a sovereign entity be allowed to choose for themselves what form of government — or none at all — they posses? Continuing this line of arguments, William Symmes had insisted that it is the business of no state what the government of any other state is. Madison, however, argued that the only way the union could hold together was if the states all had governments cast on republican principles.
He went further. In an April of 1787 reflection on the defects of “the present confederation.” There he tied the issue to slavery, offering the following propositions: “According to Republican Theory, Right and power being both vested in the majority, are held to be synonimous. According to fact and experience a minority may in an appeal to force, be an overmatch for the majority. 1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds. 2. One third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government. 3. Where slavery exists the republican Theory becomes still more fallacious.”
Thus we see that republicanism, state self-determination, slavery, westward expansion, and sectionalism were already simmering elements of that toxic stew that would result in the Civil War. Whether that outcome was inevitable is open to debate, but the hopes of the framers of the Constitution for a perpetual union already looked misplaced.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
Related Essays
