‘The Federalist Papers’ and Contemporary Political Challenges

American Political Theory and Constitutional Law Series, Pt. I

The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.

In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes,  to line-item veto just begin the list in attempts to reshape the constitutional order.

For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.

American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.

The Founding Fathers empowered the federal government because they believed it to be the best check we could have on the “propensity of mankind to fall into mutual animosities.”[1] However, many critics of the federal government would like much of current federal powers be transferred to the states. While I am sympathetic to this position, I am not sure of the scope of power transfer that is being advocated. I am certainly not opposed to the federal government ‘sharing’ its power, extensively, with the states on a variety of issues. However,  given a large transfer of power, issues like welfare, health care, environmental and energy policies would not be governed not in Washington, but rather in fifty separate statehouses. I certainly don’t think governmental power should be absolutely centralized in Washington, but I don’t think the opposite extreme is the solution. That is to say, I think more ‘leeway’ and more ‘share’ and influence on such policies should be permitted in state governments and less rigid control be exerted by Washington—respecting the principle of subsidiarity. This is where I think I begin to depart from mainstream conservatives (unless I am misunderstanding their position, or wrongly ‘grouping’ them). Much attention in the ‘conservative’ argument—too much attention—has been focused on what effects such a change would have on particular programs and policies, that is, what would happen in the short-term. My hesitation is the lack of focus on how this change potentially could undermine basic premises of the nation’s founding.

The national government was intended to be strong enough to defend the nation against foreign enemies and to prevent conflict across state lines. The Founding Fathers intended to establish a national market where goods and labor could move freely in interstate commerce. Moreover, through the federal government, the framers of the Constitution sought to, above all else, solve the problem of what Madison coined as “faction.” The divisive forces of passion and interest, it was argued, would plague local and state governments  to the point of national division at its worst. Therefore, the solution was to extend the sphere of government to national dimensions and the factionalism would be kept in check, at least, as best as can be. The United States has survived incredible division and our system of government, thus far, has stood the test of time.

I cannot help but think how essential this point is. I hardly wish to imagine the division amongst the states, with a more remote federal government, with sharp regional disagreements over abortion, affirmative action, homosexuals in the military, and other cultural issues. Other issues are economy-related, the most common and durable have been the unequal distribution of resources—this immediately brings to mind the struggles over tax cuts, regulation vs. deregulation, and access to medical care.

The framers’ ingenious, and so far enduring, solution to the problem of faction was one of institutional design: build a strong a federal government that would combine representative democracy and “an extended republic.” Madison argued, the smaller the government, the more homogeneous. Thus, state and local governments are vulnerable to factional capture. I talked about this problem previously when discussing Bill Bishops’ The Big Sort and the division of America at the most local of levels.

Bishops’ thesis is simple: Americans have segregated themselves both politically and culturally. It is a natural human tendency to gravitate toward like-minded individuals. Given that at the social level, humans seek those whom they can identify with and given that the ownership of private property is a right, it follows that, if possible, people will move to places where there are people like them, which naturally makes them more comfortable. However, the often unseen consequence is that America has divided itself into communes which are entirely culturally and politically conservative or liberal.

Bishop puts it this way: America may be more diverse than ever coast to coast, but the places where we live are becoming increasingly crowded with people who live, think, and vote like we do. This social transformation didn’t happen by accident. We’ve built a country where we can all choose the neighborhood and church and news show — most compatible with our lifestyle and beliefs. And we are living with the consequences of this way-of-life segregation. Our country has become so polarized, so ideologically inbred, that people don’t know and can’t understand, and can barely conceive of “those people” who live just a few miles away.

This evident tendency is self-reinforcing. The more a specific region is monolithic politically, the more extreme the group can get. This, of course, turns-off people of the opposite view or those of a more moderate view, which allows the region to be even more monolithic. At the political level, local election between two parties is absurdly non-competitive. Depending on the demographics and thus, the political orientation, one party usually wins the area in a landslide. Local, or even state parties have enough support to tackle virtually every issue. As can be seen, political party primaries are dominated by partisan, party activists. At the national level, this reality translates into the non-existence of moderate candidates, a partisan nightmare, and an eternal gridlock of legislative action in Congress, a war for the presidency, and most troubling of all, the Supreme Court has become a pantheon of nine gods who we fight over to ensure they share our views.

This living dynamic reaffirms the tendency to only listen to opinions one agrees with, have little tolerance of other views, and to become all the more extreme in one’s own perspective. A simple glance at a presidential electoral map — broken down into county, city-wide, state, and regional patterns — confirms this observation (view the map and click state by state and look at the breakdown by counties.) Urban areas vote dramatically different than rural ones. People at the bottom of the socio-economic scale vote dramatically different than those at the top of the socio-economic ladder. The differences in these groups matter because if like-minded people flock toward one another, prosperity can be found at its highest where the most socio-economically advantaged reside. Bishop notes that education had always predicted city growth and after the 1970s the cities that grew the fastest and the richest were the ones where people with college degrees congregated. It’s not really news that intellectual elites tend to vote Democratic and not so surprisingly, the most esteemed universities and colleges in America are in areas where the wealthy and well-educated commune.

This dynamic has found its way into American churches. Many evangelical, fundamentalist Christians – in concert – enter the world of politics with concern for abortion, marriage and family issues as top priorities – none of which are negotiable. They are the current base of the Republican Party. Other Christian denominations may emphasize a “social gospel” which entails social justice, fighting oppression and bigotry, promoting personal “choice” on abortion, and accepting gays and lesbians, which leaves them in the Democratic column. In essence, religion in America is now being interpreted through the framework of political concepts, i.e. secular schools of thought. There is “liberal” Christianity and “conservative” Christianity. Many churches have become monolithic in their political views because people even prefer to worship in like-minded congregations. It’s why many Protestants “church hop,” particularly if they are say, a pro-choice liberal, and the pastor consistently condemns abortion and gay rights. They’ll find a church that shares their view.  It seems then that the measure for the “true” church or a “good” church is how it lines up with our own political views. The use of religion as political mechanism has only deepened the divide between the people and it’s alienating people from God.

Just recently in listening to two political analysts debate, one of them made the comment “the values of Republicans and Democrats [the mainstream base of both parties] are very much at odds. We do not agree about the most fundamental issues.” The fundamental issues are many: abortion, birth control, gay unions, guns, education, and the environment, and many more. The parties (and the people) not only disagree on policies, but on principle. The fact that the country segregates itself into isolated communities reaffirming their own beliefs versus having a meaningful dialogue only deepens the problem. It’s a spiraling cycle.

Americans have arranged themselves geographically in terms of economics and politics in the last thirty years. While the free choice of where to live is wonderful, it also naturally generates economic inequity, cultural and social misunderstandings, and political gridlock. Bishop wrote an interesting line in his book: We have created, and are creating, new institutions distinguished by their isolation and single-mindedness…we have worked quietly and hard to remove any trace of the ‘constant clashing of opinions’ from daily life. It was a social revolution…entirely unnoticed.

Fundamentally, the American people isolate themselves into groups that inevitably become partisan, political think tanks form with whole, entire comprehensive agendas that are often not open to debate or revisions by opposing groups.

This analysis, if valid, attests to Madison’s fear. While the battles in Washington, D.C. are not free of partisanship, it seems that the national problem is a manifestation of mentalities and factions that are forming locally. Thus, on the framers’ theory, a decentralization of power—reasonable, at first glance—is the wrong prescription for our problems, particularly for a time when passions run high and interests are in sharp-competition. I can hardly imagine that the early twenty-first century is the time when it was unimaginable in the late eighteenth.

With the rise of industrialization, the socio-economic divide has grown even larger with the wealthy decrying governmental preference for the poor, women, and minority groups as “redistribution of wealth,” “socialism,” and “reverse racism.” U.S. residents claim that immigrants are stealing American jobs and social services. And talk radio and the Internet fuel such passions with a new and incredible speed. The solution to these divisions is not to dismantle the federal government—the only device anyone has ever come up with in our political history to buffer factionalism.

To be fair, certain criticisms cannot go unaddressed. Some might argue that the conditions necessary for the federal government to control factionalism have disappeared in contemporary American life. Madison envisioned that national elected officials would distance themselves and be detached from the public in their deliberation about the common good. However, in our time, electronic polling conveys to politicians every ripple of public sentiment and continuous C-SPAN coverage and 24-hour news cycles reports every move members of Congress make to their constituents. These are the conditions of reactive, not deliberative, government. Madison also imagined that it would be more costly for factions to mobilize at the national level, which is not true today with advances in both communication and transportation. Most importantly, Madison wanted a limited federal government that would offer very little in the way of spoils for factions. However, the Sixteenth Amendment has given Congress the power of progressive income taxation and with it the power to fashion federal agencies and programs on a scale unimagined by the framers. Thus, factions have a greater incentive to promote their passions and interests at the federal level. This potent combination has created a crisis at the federal level which could be solved, as is argued, by redistributing certain federal powers to the states.

The opposition makes quite an argument and I don’t think every single detail is untenable. Despite the fact that the federal government is far from perfect and there is surely heavy influence by special interest groups in Washington, D.C., I think there is still some considerations that aren’t being made.

First, while it is true that much has changed, if anything, history has proved Madison right about the role of the federal government. There are two principal points of federalization of power—the former (Reconstruction) being less controversial than the latter (the New Deal). After the American Civil War, the federal government broke the grips of pro-slavery factions in several states and set the groundwork to eliminate state and local tyranny of the majority based on race.

Now I’m sure, for many, this is not an improper role of federal government and it did not work beyond its limits or contrary to justice. This leads to the second point. I think many, to the point of hyperbole, overrate the virtues of contemporary states. By this I mean, it seems that some “romanticize,” as it were, the states being much “closer to the people.” They present the states as fountainheads of participatory democracy, of popular rule by ordinary citizens. I am unconvinced that this portrait is entirely accurate. For starters, most states, by their size and unlike in previous times, population, don’t conform to this image so well. If anything, passion and interest play the same role and if this occurs across 50 state governments—the contention and disagreement could prove even more fatal to our country.

I don’t find it convincing that the smaller scale of the states create significant advantages. Like the federal government, most states have developed elaborate permanent bureaucracies (I’m not saying they should be there; I’m saying they are there). Most citizens who participate directly in government do so at the local and state level, sending those who receive their “blessing” to the national government (cf. The Big Sort theory above), therefore, reaffirming that partisanship begins close-to-home. It is at the local level that the problem of faction is most acute. Just because factional capture has gotten easier at the federal level does not mean it has gotten harder in the states.

The arguments in favor of devolution of federal power strike me as doubtful, not that my opinions bear any significant authority. However, I am going to make a suggestion, and perhaps, not a popular one. It seems to me that other impulses might be at work here. It is no question that I am diametrically opposed to libertarianism, which I can scarcely find any evidence to suggest that it nothing but the natural political philosophy of Social Darwinism and all such borne of Enlightenment philosophy and its radical emphasis on individualism to the point that taxation is equated to “government theft” and social or collective responsibility must immediately entail some movement toward “socialism.” I digress…

Decentralization can be an attractive cover for deregulation. President Theodore Roosevelt once remarked, “The effective fight against adequate control and supervision of individual, and especially corporate, wealth engaged in interstate business is chiefly done under cover; and especially under the cover of an appeal to states’ rights.” That is, those seeking to decentralize power from the federal government might anticipate that transferring power to the states will reduce the role of the government altogether, leaving matters previously governed at the national level not to the states but rather to the market.

State governments are weaker than Congress. Many states have part-time legislatures. Few pay their legislators very much. Just as many have imposed term limits on state representatives and who all together have less experience and resources as those at the national level. Comparatively, this will produce markedly less regulation than would by Congress on the same issues, perhaps, even less than a Republican majority in Congress.

Not so surprisingly, I don’t have the answers to the difficult challenges we face. I’m not endorsing “big government.” But I suspect that if the federal government would repose its power and allow more to be taken by the states, it might not only unleash the problem of factions feared by the framers of the Constitution, I don’t think it would solve our problem.

We should not let our hearts be troubled. While we have a moral obligation to work diligently for justice in this life, we should never forget one of James Madison’s most famous remarks: “If men were angels, no government would be necessary.”[2] Yes, yes, indeed. If we seek that which is above and achieve the beatific vision, we may know a life where there is no politics—what a life that will be.

[1] James Madison. The Federalist No. 10

[2] James Madison. The Federalist No. 51

12 Responses to ‘The Federalist Papers’ and Contemporary Political Challenges

  1. Zach says:

    Madison’s solution to the problem of faction was built into the Constitution, as you note. But this design was not a “strong federal government,” if by strong you mean administratively centralized.

    His solution is spelled out clearly in Federalist 51:

    It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? 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’s solution to faction was gridlock. He argued that if every faction fought for its own interest, none of them would become powerful enough to become dangerous to the majority. But he did not imagine the battleground for all partisan political action to be the Presidency – which is what conservatives lament when they talk about the concentration of power.

  2. Eric Brown says:

    No, I didn’t mean administratively centralized. I indicated (perhaps not well) that I think the states should become more affairs be taken care of at the state levels. What is unclear to me is how much power antifederalists advocate be taken to that level, to which I outline my hesitation if, only if, it were to go what I would think is too far.

  3. paul zummo says:

    The framers’ ingenious, and so far enduring, solution to the problem of faction was one of institutional design

    I just had to note that the title of the third chapter of my dissertation is: Madison and the Federalists: The Institutional Response. I am happy that your analysis is so close to mine, but also somewhat saddened that I am not nearly as original as I thought I was. 🙂

    Anyway, this is a tremendous essay, though I think that you and I diverge on what the modern response needs to be. The Framers designed a Constitution that was meant to strengthen the Federal government as you say, but simultaneously was meant to be a limited grant of authority.

    I’m going to need to chew on your essay a bit more before commenting further. Like a good steak, this sort of stuff needs to be digested slowly.

  4. Art Deco says:

    No, I didn’t mean administratively centralized. I indicated (perhaps not well) that I think the states should become more affairs be taken care of at the state levels. What is unclear to me is how much power antifederalists advocate be taken to that level, to which I outline my hesitation if, only if, it were to go what I would think is too far.

    Eric, if you read Article I, you will remark that the powers delegated to the Federal Government are quite modest. The limits implicit in these delegations were discarded during the Depression (and the characters at the Rockford and von Mises Institutes would have their complaints about structural and policy innovations throughout the post-bellum period). For those whose political thought is dominated by the Constitution both as legal text and as icon, the mission of Federal Government would be limited to those specific delegations with all other public functions exercised in state capitals or by local governments.

    The Nixon Administration was quite serious in its attempts to return discretion to state and local government. IIRC, one general guideline they employed in attempting to sort functions between the central government and the provinces was that service provision that involved the employment of manpower and equipment was more appropriate for the particular levels whereas the deployment of cash was more appropriate for the central government. As I recall, both the Nixon Administration and the early Reagan Administration were concerned that categorical grants to state and local administrations distorted the revealed preferences of local government and vitiated accountability.

    With that in mind, you might ask which level of government has an extant bureaucracy to perform particular functions, whether technical factors or political factors tend to inhibit the proper performance of said function at the level of government where it resides. You might also note that a political class drawn from and living among its subjects is likely to better reflect the aggregated preferences of the populations in question.

    I will offer the suggestion that

    a.) functions which require unified collective action repair to the Federal Government (e.g. the military and the diplomatic corps);

    b.) that income redistribution repair to the Federal Government (given that there is spatial variation in incomes over various time frames);

    c.) that functions which benefit from larger actuarial pools repair to the Federal Government (that which is done by FEMA or the FDIC would be examples);

    d.) and that the regulation of transactions and the maintenance of infrastructure which habitually cross state lines and the international border repair to the Federal Government (regulation of the transportation industry and maintenance of inter-state highways would be examples).

    The remainder could repair to the state and local authorities.

    I think if you want more electoral competition at the local level, the following might help:

    1. Metropolitan government in cities, borne of federating existing municipal governments.

    2. Amalgamation of municipalities and counties outside of metropolitan centers. Base your municipalities on actual settlement patters, with one for each concentrated settlement sporting between 2,500 and 50,000 in population, with the interstitial countryside apportioned according to formula. Have your counties composed not of arbitrary blocs of territory, but of a federation of small municipalities within the orbit of a specified metropolitan center.

    3. Replace single member districts and first-past-the-post with multimember districts chosen by ordinal ballots tabulated according to rules of single-transferrable-vote

    4. Choose elected executives according to ordinal balloting tabulated according to rules of ‘alternate vote’.

    5. Require your candidates for election to be at least forty years of age and require rotation in office.

    6. Simplify your electoral calendar and reduce the number of offices subject to election. Elect the Governor and a unicameral legislature, not the Secretary of State or the Attorney-General or the Railroad Commission. Elect the Mayor and City Council, not the Sheriff or the County Clerk.

    7. Instead of electing judges and prosecutors, have them appointed with the advice and consent of legislative bodies; there continued tenure in office would be subject to referenda at intervals after a probationary period. Hold your referenda in June and your elections in November, to simplify ballots and campaigns.

    8. Abolish all funded and unfunded mandates and replace all inter-governmental grants-in-aid with straightforward unrestricted revenue sharing distributed by a formula which takes into account local per capita income and local population. This should help clarify just which bodies are responsible for which policies and what the stakes of electoral campaigns are.

  5. Eric Brown says:

    To clarify, I’m not arguing for a federal government with unlimited power. Think St. Augustine seeming to think that human nature is just deplorable, but read in context of him arguing against Pelagius, you realize that his diction might tend toward exaggeration to avoid an extreme that is heretical.

    The argument for sharing more responsibilities and tasks with the states, even letting states assume majority responsibility for a number of matters in terms of efficiency et al. I am 100% in favor of.

    I was trying to detail my hesitations in terms of the scope of the transfer of power and what is entailed in that transfer. Moreover, I blatantly stated that I’m skeptical of the intentions of a lot of fiscal conservatives and libertarians making the argument.

    I don’t have an explicit position on what “the modern response needs to be” save remaining as close as possible to the design of the framers of the Constitution.

  6. Eric Brown says:


    Due to language choice, I think it’s more than likely that you misunderstand my position. I’m not opposed to subsidiarity in the slightest, or state governments be more involved and/or take responsibility for many policies currently handled primarily (or solely) in Washington.

    My interest, at least, in this specific column (notice, it’s going to be a series) is not which tasks the federal government should handle. My point was address certain arguments, e.g. changing” the scheme, so to speak, of our government and its operation might better deal with our problem of faction. Or, in another sense, the presumption that state governments are superior, or even, preferable to the federal government. I’m rather inclined to say that it is a matter of prudential judgment and I’m not prepared to make such a claim.

    I’m practically agree with most of your proposals, except #5. I think 35 years of age would be sufficient; perhaps, even 30.

  7. Art Deco says:

    It would be advisable to have our legislative bodies composed of people who had put considerable time into learning and practicing a trade they could return to. Jerry Springer, who once upon a time Mayor of Cincinnati, explained his retirement from politics thus: “I didn’t want to do it as a career… If you’re doing it to put bread on the table, you’ll say anything…most of these guys haven’t practiced law in 25 years; they’d be incompetant…they go into lobbying when they leave office because that is what they know.” A career like Charles Schumer’s or Trent Lott’s should not be possible. Forty is a proper minimum, and rotation in office a must.

  8. Art Deco says:

    While we are at it, raise the age of eligibility for the Presidency to 60. The recent Presidents who left the state of public policy better than they found it (Truman, Eisenhower, Gerald Ford, George Bush-pere) have been old men.

  9. Zach says:

    I probably misunderstood you – I commented in haste – My apologies

  10. Joe Hargrave says:

    “in our time, electronic polling conveys to politicians every ripple of public sentiment and continuous C-SPAN coverage and 24-hour news cycles reports every move members of Congress make to their constituents. These are the conditions of reactive, not deliberative, government.”

    Eric Brown, meet Edward Bernays:

    “The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country.”

    That is from Bernays’ book, “Propaganda”. It is not conspiracy theory. Bernays is widely regarded as the father of “public relations”, and was the nephew of Sigmund Freud. It is well worth a read.

    Click to access Bernays-Propaganda-WithNotesFromWikipedia.pdf

  11. Art Deco says:

    There has been a good deal of water under the bridge in the field of social psychology these last eighty years. A question more to the point would be what is it in the process of recruitment and socialization of our political class that renders prosperous a character as mediocre as Nancy Pelosi or a character like Timothy Geithner, who is appointed to a series of responsible positions after leaving disaster in his wake. Another is why the populace is so utterly demobilized (the re-election rate of the deplorable New York State Legislature being exhibit A).

    That having been said, Obama’s political success would seem rather an indication of a novel frivolity, but it has its more severe manifestation among the educated minority you might think would be most immune. What’s that master’s degree for?

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