Partisan wrangling erodes the civic virtue that Madison assumed in the Constitution
by Randolph J. May
Legal Times, December 4, 2000
What would the Founders think about our current election imbroglio? I suspect they would have mounting concern that the “win at all costs” mentality now capturing our politics will cause lasting damage to our country.
Recall that when Dick Morris told President Clinton that overnight polls indicated that the public might turn on him if he told the truth about the Monica Lewinsky affair, the president reportedly replied with a Clintonesque euphemism: “Well, we’ll just have to win it then.” Last year, Vice President Al Gore remarked to an aide: “I’m not like George Bush . . . I’ll do anything to win.” If we reach a point where the “win at all costs” modus operandi becomes acceptable conduct even in post-election disputes, the long-term effects on our political fabric are likely to be more consequential than those inflicted by one president trying to figure out how to save his skin.
Because James Madison indisputably was more responsible than any other single person for the Constitution’s formulation, it’s worth pondering what this foremost Founder might think about the current state of affairs. A good starting point is The Federalist No. 51, where Madison asked: “But what is government itself but the greatest of all reflections on human nature?”
Madison supplied one answer to this famous rhetorical question immediately after asking it:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Madison spoke of the “ambition” of men, their “mutual animosities” and “unfriendly passions,” and, indeed, their propensity “to vex and oppress each other.” He recognized that both individuals and interests—or “factions” as he put it in The Federalist No. 10—quite naturally would seek to gain the upper hand by aggrandizing their power. And pointedly relevant to current circumstances, in The Federalist No. 10 Madison made reference to “unworthy candidates” who practice “the vicious arts by which elections are too often carried.”
So, of the view that men are not angels, Madison set about to devise a government that would take into account this understanding. To counteract the effects of faction and preserve popular government, he conceived a system of separate and diffused powers, a system in which “ambition” would counteract “ambition.” Or, as he put it in The Federalist No. 51, a plan “of supplying by opposite and rival interests, the defect of better motives . . . .”
In the contest for Florida’s electoral votes, we see on display plenty of the raw ambition, unfriendly passions, and mutual animosities that Madison assumed would motivate contestants for political power. Regardless of who wins the prize, the new president will find his power curbed by the institutional checks and balances built into our tripartite and federal system. This is even more likely to be the case in light of the close division between the parties in Congress and the heightened cynicism and suspicion that inevitably will accompany the new president into office.
So, for James Madison looking down from above, there’s no need to worry about the electoral messiness, right? It’s only what we should expect from our politicians, and the Constitution has provided built-in mechanisms for resolving the dispute—whether in the courts, the Florida state legislature, the Electoral College, or even Congress? Not necessarily.
I suspect he’d be worried.
Because Madison understood that even though he and his Constitution-making colleagues had framed a government designed to provide the best opportunity for free institutions to survive the machinations of ambitious men, and even unworthy candidates, democracy’s survival ultimately depends on something more than the structural design laid out in a paper document. It depends as much on a shared understanding between our leaders and citizens that there are lines in our politics that must not be crossed, or else people will lose respect for the rule of law that supports the institutions created by the paper document.
KEEPING THE REPUBLIC
When a certain Mrs. Powell asked Ben Franklin what form of government the delegates had bequeathed to the waiting populace, he responded, “A republic if you can keep it.” Madison knew that our constitutional democracy necessarily would remain fragile in the same sense that Franklin understood this.
Given Madison’s understanding of the dark side of human nature, what basis is there to hope that prudential lines in our politics will not be crossed and the rule of law respected, especially in times when passions run high? Madison pinned his hopes on the existence of a duality in our natures, the existence of a noble side to rise above, if need be, the dark side.
Shortly after he wrote about the unfriendly passions and unbridled ambitions that drive men, he wrote in The Federalist No. 55:
[S]o there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealously of some among us faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government . . . .
It was this trust in what is sometimes called “republican virtue” (note the small r) upon which Madison rested his hopes—along with the diffusion of powers and other constitutional protections. Thus, back home in Virginia urging ratification of the proposed Constitution in the face of anti-Federalist opposition led by Patrick Henry, he again emphasized virtue:
I go on this great republican principle: that the people will have virtue and intelligence to select men of virtue and intelligence . . . . If . . . not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without virtue in the people is a chimerical idea.
What did Madison mean by virtue? That, as a people, we expect our leaders to act with honesty, prudence, and responsibility, and that we will not necessarily condone conduct that technically may be within the law, or at least within its unresolved interstices, but which nevertheless stretches our common understanding of what the law ought to embody.
It means that it is one thing to say, as a nation under law, we will not send a man to prison when there is “no controlling legal authority.” But it is quite another to say that we will accept leaders who tell us anything goes as long as there is “no controlling legal authority.”
So virtue in the Madisonian sense means the people and their leaders share an understanding that certain actions are improper in and of themselves, not because some “controlling legal authority” has determined them so. That is, some things are just wrong, because they are not honest, prudent, and responsible under the circumstances.
It seems to me that Vice President Gore has engaged in more unvirtuous system-stretching than Gov. George W. Bush in the post-election campaign. For example, it is difficult to hold the high ground while arguing in court for interpretations of law that allow the counting and recounting, under changing and ever more lenient standards, of every last dimpled chad on the basis that discerning the voter’s intent is paramount, while simultaneously arguing that clearly marked military ballots should not be counted for lack of a postmark that may not be required by law. This type of two-sided argumentation offends the neutral principles that we expect to undergird the rule of law in a virtuous regime.
In Robert Penn Warren’s great American novel, All the King’s Men, Willie Stark, the corruptible politician with his own Clintonesque notions about means and ends, declares, “The law is always too short and too tight for a growing humankind. The best you can do is do something and make up some law to fit and by the time that law gets on the books you would have done something different.”
Madison’s hope was that despite the darker side of human nature, Willie Stark’s cynical view of law and politics would not in the end prevail. And my hope is that somehow the election ends in a way that brings out our noble side, and therefore vindicates Madison’s faith in republican virtue.
Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at email@example.com. His column, “Fourth Branch,” appears regularly in Legal Times.
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