Solving Madison’s Faction Problem (Federalist #10)

 

 “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

 

-         a faction can be the majority or a minority

-         passion or interest as “common impulse”

-         harmful to rights of others or to aggregate interests

 

Poor Solutions

A pure democracy – a society in which the citizens assemble and administer the government themselves – must be small to avoid the “confusion of a multitude”.

-         Majority factions can arise easily among small numbers

 

Representatives are no cure

-         “enlightened statesmen will not always be at the helm”

-         “Men of factious tempers, of local prejudices, or of sinister designs… may… obtain suffrages [votes], and then betray the interests of the people.”

 

 

Large, Compound Republic as Solution

A republic can cover larger numbers via representatives

-         number of representatives will not be proportionate in small and large numbers

o       e.g., 100 representatives from 10,000 people v. 1,000,000 people

o       if “worthy” representatives are 1 in 5,000, then there are 2 in the small democracy but 200 in the large republic

o       more voters per official limit ability of the unfit to fool the people

-         risk of going too large: official must understand local interests but not be too beholden to them at the expense of national aims

o       national legislature deals with national concerns

o       state legislatures deal with local concerns

o       further evidence of compound republic

 

Larger numbers limit factions

-         more diverse parties and interests

-         harder for majority faction to form

-         harder for a faction to communicate and coordinate with others

-         States can contain factions

 

Problem of the Public Good

-         does Madison explain how the public good is achieved?

-         can we assume the “worthy” candidates will win?

 

 

Sharing Powers under Compound Republic (Federalist #51)

 

Text Emphasizes “Separation of Powers”

-         nominally separate powers into “departments”

o       executive, legislative, and judicial

-         checks and balances on powers of each dept.

o       executive can veto laws, but

o       legislature can overrule veto with super-majority

o       executive nominates judiciary and officials but legislature approves them

-         how would this prevent tyranny?

o       Rules of constitution

o       “ambition must be made to counteract ambition”

 

Compound Republic as a Check

-         how to guard one part of society against injustice of other part

o       monarchy might perceive societal, or public interest but

o       might pursue private interest of the monarch

-         in compound republic multiple views mean that only “justice and the general good” can unite factions

 

 

Was Resulting Republic Too Federal?

 

Anti-Federalist Position

-         “compact of republics” preferred to “compound republic”

-         dangerous centralization

o       central government would oppress liberty

o       state governments would preserve liberty

-         contra Madison, homogeneity of small republics would promote public good

o       different, homogenous states would make up diverse nation

o       Anti-Federalists saw states as political communities

o       Believed small republics of states would achieve common good

-         No explicit protections for liberties (Bill of Rights)

 

Strong Federal Elements of Constitution

-         Elastic, or necessary and proper, clause of Art I, Sec. 8:

 “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

o       Congress can pass laws on powers not enumerated but “necessary and proper” for implementing those powers and for “all other Powers”

o       Basis for inherent and implied powers of government

o       How broad should this clause be construed?

 

-         Supremacy clause of Art. VI:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

Limiting Federal Elements of Constitution (Dual Federalism)

-         enumeration of powers in Art. I, Sec. 8

o       should federal government only engage in enumerated areas?

-         denial of explicit powers to federal government in Art I, Sec.9

-          “necessary and proper” clause to limit what federal government could do

o       not a blank check but enabling the enumerated powers

-         Tenth Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

 

 

Ambiguity of the Constitution and Federalism

-         concurrent powers exist: e.g., taxation, police power

-          inherent and concurrent powers may clash

o       Lopez v. US (1995): police powers should be exercised only in areas of enumerated federal authority

§        “Gun-Free School Zone” is as a state, not federal area because it does not “substantially affect” inter-state commerce

§        1790 federal murder statute restricted jurisdiction to “within ... any ... place or district of country, under the sole and exclusive jurisdiction of the United States

o       Constitution is a founding document for the polity and a set of rules and structures for government organs

§        Limited as a policy document or guide for governing

§        Product of republican compromise