The Promise of Human Rights. Jamie Mayerfeld
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makes it even better. Justice takes precedence over but does not exhaust the common good. Both are proper ends of democracy. I shall sometimes use the term “justice” as shorthand for both.)
Like Locke and Rousseau, Madison does not call himself a democrat.7 But he earns the title of democrat as that term is now ordinarily used, because he declares himself a friend of popular government and takes it for granted that “the people are the only legitimate fountain of power” (Fed. 49, p. 313). Though he favors republics over democracies (the latter being impossible in any territory larger than a city-state), he defines both as a species of popular government: “in a democracy the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents” (Fed. 14, p. 141). America’s glorious gift to posterity and the world (p. 144) was the discovery that by means of representation governments of large territories (for example, both the individual American states and the contemplated union) could remain “wholly popular” in character (p. 141). Europe originated the principle of representation, but “America can claim the merit of making [it] the basis of unmixed and extensive republics” (p. 141).
Of course, Madison does not idealize the people. He worries about the propensity of popular government to mobilize faction, and he seeks institutional arrangements that will allow a virtuous few, chosen by the people, to carry out the main tasks of government. Yet to call him an elitist is misleading. Though he believes that some people possess more virtue than others, he does not regard virtue as the exclusive property of any class (Fed. 57, pp. 343–44). Public officials should be chosen by the people or their elected representatives, not assigned by heredity. He follows the republican tradition of placing all social classes under suspicion: the rich have their vices no less than the poor.8 If the emboldened state legislatures of the 1780s heightened his distrust of the people, his subsequent break with the Federalists and horror at the Alien and Sedition Acts reawakened his fear of arrogant elites. Even in The Federalist (written when the recent excesses of empowered majorities were freshest in his mind), there is a straightforward reason for his preoccupation with majority tyranny that has nothing to do with aristocratic leanings.9 The reason is that there is an obvious solution to minority tyranny, namely popular government and majority rule, whereas the solution to majority tyranny is harder to figure out (Fed. 10, p. 125).
Madison illuminates the value and purpose of popular government. Contemporary readers are sometimes bothered by the rude things he says about the people. How can someone with such a dim view of the people believe in their right to govern? But that is precisely the point. Madison does not trust the people, because he does not trust anyone. Or more precisely, he does not trust any collectivity defined by a shared interest or identity. His constant fear is that power will be misused or abused. Participation in government is not a prize to be distributed for our enjoyment, but a responsibility whose burden should be keenly felt. If widespread character flaws threaten the proper exercise of power, those flaws should be constantly kept in mind so that we can more adequately correct and counteract them. Self-distrust, like mutual distrust, is a necessary precondition of good government.
To ensure the responsible exercise of power, we must enlist one another’s help in exposing and correcting our errors. Since partiality hinders perception of our own faults, we need others to help point them out. Mutual criticism protects society, not only by exposing error to public view, but also by encouraging virtue, since to avoid the shame of external criticism and correction, we become more self-critical. Madison embraces what I call the principle of concurrent responsibility, according to which each actor must ensure that all actors (oneself and the rest) exercise their power responsibly. Concurrent responsibility is another name for checks and balances and forms the heart of “Madisonian democracy,” by which I mean the engagement to hold one another accountable in a shared project of crafting and enacting policies that promote justice and the common good.
The reason why concurrent responsibility, or checks and balances, implies democracy is that popular control is the most important of all checks. “A dependence on the people is, no doubt, the primary control on government” (Fed. 51, p. 320). Madison does not pause to defend the claim—perhaps it struck him as obvious.10 Let us say the following. Because respect for individual rights is the chief element of justice, all individuals must be given a voice. Self-interest makes us vigilant custodians of our own rights. Empathy and a sense of justice as well as self-interest (violations visited on others may be visited on us next) motivate us to protect the rights of others.11 The virtues of empathy and justice receive encouragement when the people can express their views not only through voting but also through voluntary associations and the press.12 In a thriving and inclusive civil society, new perspectives demand attention; errors are challenged; and those who want to view themselves and be viewed by others as good, fair, and decent must work harder to prove the case. Not least, popular government models the equality and universal respect that are inseparable from the idea of individual rights.
Madisonian Checks and Balances
Though dependence on the people is the primary control on government, “experience has taught mankind the necessity of auxiliary precautions” (Fed.51, p. 320). Most obviously, a majority may perceive a shared interest in oppressing a minority. In Federalist 10, Madison devises a sociological remedy and in Federalist 51 an institutional one. First, construct a polity in which no faction is likely to embrace a majority of the people. Second, divide and disperse power so that public officials can monitor and check each other’s behavior. The latter solution (on which I shall focus for the time being) is the principle of checks and balances. As I stated above, checks and balances should be understood as the “concurrent responsibility” of each actor to ensure that all actors exercise their power responsibly.
Concurrent responsibility is woven into the design of the U.S. Constitution. Members of Congress “and all executive and judicial Officers” take an oath to support the Constitution (U.S. Const., art. VI). If an unconstitutional bill is introduced in the Congress, legislators have a duty to reject it. If passed in one house, legislators in the other must block it. If they do not, the president has a duty to veto it, and if he or she fails to do so, or Congress overrides his or her veto, the federal courts have a duty to declare it unconstitutional.13 We can tell similar stories about the concurrent responsibility of the three branches to block unconstitutional acts by the executive and judiciary.
If Congress does its duty, the matter will not come before the president or the courts, but their independent power to block unconstitutional laws in case of congressional malfeasance reminds Congress of its constitutional obligations. Checks and balances thus perform an educative and reforming function. They serve not merely as an insurance mechanism, but as a means of habituating actors into virtuous behavior and thus (in good Aristotelian fashion) making them virtuous. They foster dialogue, thus creating possibilities for mutual learning and assistance as well as mutual supervision. In a constitution of divided powers and mutual checks, John Adams wrote, “a general emulation takes place.”14
We must stay clear of two persistent confusions, one regarding institutional design and the other regarding the motivation of the parties. The first is an identification of checks and balances with a strict separation of powers scheme in which functionally defined branches enjoy undisturbed authority within their respective spheres. An example of this view is the theory of the unitary executive, supported by a selective (and mistaken) reading of Alexander Hamilton’s Federalist essays, which in its most extreme version holds that the president has sole decision-making power on executive matters.15
The question is how we should understand the concepts of separation of powers and checks and balances. I do not intend to pit these two concepts against each other, since the meaning of both is what needs to be determined. Theorists often define one in terms of the other, and this is to be expected, because on the most plausible accounts they are functionally related. The question is which model ought to underlie both concepts. For our purposes, I shall distinguish between a “strict separation model”16 and a “mutual interference model,” and argue for the latter over the former.
Not only is the strict separation model contradicted by numerous