Federalist 57
“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority,” wrote Lord Acton, surely one of the most well-worn, if misquoted, apothegms concerning political life. When individuals no longer exercise authority directly, having deputized others to exercise it on their behalf, they lose control over the decisions that deeply affect their lives. For that reason they must have some degree of confidence in those to whom they cede authority, since authority must always be accompanied by some sort of functional power. For example, if I defer the education of my children to someone else, either hiring a person as a tutor or ceding that task to a school, I need some confidence that the educator will educate my child as I would have had I time or inclination to do so. When that confidence breaks down we have a genuine crisis of authority, and one central cause of breakdown is when the delegate operates with a set of interests contrary to those of the person doing the delegating.
We refer to this as the principal/agent problem, and it is the central problem of representative government. The agent in question, the elected representative (if election be the mode of selection), is expected not to adopt a set of interests contrary to those of the voters. This requires a shared world between the representative and those he represents, but also transparency (you have to actually know what the representative is doing) and accountability (a mechanism for punishing misrepresentation), removal from office being a primary means.
Americans seem particularly uncomfortable talking about social class, but often forget that the system of classification results from the diversity of human types, the ranking of relative contributions to the social good, and from the free choices individuals make about how they want to live. These classifications can become invidious if our notions of social diversity get skewed or it we become confused about social contributions and the honors that ought to pertain to them. Why have we ever even heard of the Kardashians?
In the constitutional period, however, “classes” didn’t refer so much to differences in wealth, although those were not unrelated, but to the different modes of life. How does one make a living for oneself? Do you create wealth by growing and producing and making things or do you become wealthy by skimming surplus off the labor of others? Do you stick to a place and community or do you move around? Are you formally educated or no? Are you to the “manor” born or no? A second assumption was that a well-designed government would both represent and harmonize all these different and often competing interests. The interests of a farmer in Georgia will be different than those of a trader in New York, and somehow the system of representation had to reconcile those, but could only do so if those interests were fairly represented.
Many of the Anti-federalists feared that in a system of malapportioned representation the interests of some groups would be favored over those of others, or that representatives could become captive to an alien set of interests. What would happen if, not knowing enough about the people for whom they were voting, the people found themselves duped by false prophets and confidence men? This might be especially the case if representatives were chosen at-large rather than in the localized districts the Anti-federalists preferred (since the Constitution did not mandate the creation of congressional districts). Given not only the complexities of campaigning, but also the ability to curry favor, might not the system of representation tilt to the advantage of the wealthiest members of the community, who in turn would operate the levers of government to shift the whole political economy in an advantageous direction?
Madison took up these concerns in Federalist #57, for my money one of the more interesting ones he wrote. He clearly identified the central problem of representation: how do you get trustworthy people of good character into office and, once in office, how do you keep them from becoming corrupted?
“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.”
There is no perfect solution to this problem, because perfect solutions do not emerge from imperfect beings. The system of checks and balances, Madison believed, as well as the mode of elections, the length of terms, and the restrictions on power would all serve to check the temptations of ambition. The constitutional system would serve to “control the caprice and wickedness of man” so far as that was possible. It would be foolish to think we could have done better, for such restrictions were “all that government [would] admit, and that human prudence [could] devise.”
The restrictions on ambition, and thus misrepresentation, were of sufficient variety and number as to exert downward pressure on the abuses of power. First of all, the constitution provided very few qualifications for holding office. This meant that the national legislature would favor “not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States.” The egalitarian impulse pertained to the class structure of America, each one equally entitled to choose from their ranks. The constitution having prohibited titles of nobility and the receipt of emoluments and the absence of religious tests would leave the classes on an equal footing.
Madison argued that critics of the Constitution had both too much and too little faith in the people. Give them a choice between two candidates, no matter how distant the relationship, and people would vote for those “whose merit may recommend him to the esteem and confidence of his country.” The people could be counted on to choose representatives worthy of their trust. In return, the representative would be filled with a sense of obligation to hold that trust sacred. Moreover, the representative would be humbled and honored by having such a trust placed in him, and those qualities would direct his conduct once in office. Filled with gratitude for the people having chosen him, the representative would never break that faith. “There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns.”
A third factor insuring fidelity would be the self-interest of the representative. Why would he break faith with the people if such violation resulted in his removal from office? Once having curried the people’s favor the representative would be well-advised to keep it as a condition of “advancement.”
None of these factors would be sufficient in themselves, Madison continued. Frequent elections alone could sustain the tie that bound representatives to the people, not only in the sense that they could remove him from office, but also as a biennial reminder to the representative that he was there to serve those who voted for him.
“Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”
Madison offers up a final condition for keeping representatives faithful, and it may be the most important one he identifies, but also the one whose violation threatens our whole constitutional structure: representatives must be subject to the laws they pass. In other words, the law has to apply universally without exceptions. Once exceptions are allowed, either for the legislators themselves or their friends/donors/clients, the whole system of representation breaks down. With the power to make exceptions “every government degenerates into tyranny.” A legislative branch tailoring legislation to the benefit of one group over others, or carving out exceptions for particular actors, or — worse still — an executive doing the same: these are the great threats to democracy. No reasonable man would pass a law that would unduly harm him or his family, and the extension of that impulse to all others is a fundamental principle of good government. It may not be the golden rule, but the silver rule isn’t a bad start: don’t do to others what you wouldn’t want done to you.
Americans don’t care for pretense or haughtiness, and they don’t like others getting all up in their business. If you pass a law, you better make sure it applies to you as well. The corollaries to this axiom are that people have a clear idea of what their representatives are actually doing and, as importantly, care. For a representative can violate trust with impunity so long as the people no longer zealously guard their own freedoms. Whatever formal political mechanisms get put into place, buttressed as they may be by channeled ambition, the foundation remains “the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it.” The people must be the guardians of their only liberties, and since a system of representation is already a siphoning off of such guardianship, the other checks must operate effectually. There is no substitute, however, for that vigilant spirit that resists tyranny.
I don’t think we pay enough attention to the legislative or executive ability and tendency to carve out exceptions and what that portends for both the current and future state of democracy in America. Take, for example, the Affordable Care Act, which granted mandatory insurance exemptions not to small but to large-scale employers, thus buttressing the financial advantages they already enjoyed. Madison may have dismissed the charges that the constitutional system created an oligarchy, but experience has not justified his confidence. Proposals to ban congressional stock trading are one indication that people have lost faith in their representatives to play by the same rules that govern the rest of us. Once such faith is lost, it is not easily regained. But we have said nothing yet of how incumbency and the absence of term limits might affect Madison’s system. That is yet to come.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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