The Promise of Human Rights. Jamie Mayerfeld
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clearly rejects it in his theoretical writings, and for sound reasons. He ties his view to that of Montesquieu, who (Madison tells us) understood the separation of powers as prohibiting only those arrangements in which “the whole power of one department is exercised by the same hands which possess the whole power of another department.” Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other” (Fed. 47, p. 304, emphasis in original). What is required is a modified rather than strict separation of powers.
Strict separation is impossible in practice: “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained” (Fed. 48, p. 308). An unmodified separation of powers leads to its own collapse. But the purpose of mutual controls is not merely to preserve a partial separation between the branches. As the discussion in Federalist 48 of Pennsylvania’s recent troubles makes clear, their purpose is to prevent constitutional violations in general, including violations of individual rights.
More worrying to Madison than the blurring of functional boundaries is the concentration of power itself. The “encroaching nature” of power (Fed. 48, p. 309) means that no department should acquire disproportionate strength. The early history of the American states had convinced Madison that, in republics, “the legislative authority necessarily predominates” and should therefore be divided in two (Fed. 51, p. 320). Soon after the federal union was created, he learned to fear the power of the executive branch, and adjusted his constitutional strategy accordingly.17 His interest in devising cross-departmental checks, evident at the Philadelphia Convention, persisted after the national constitution was drafted. In 1788 he recommended that Virginia adopt a “Council of Revision” drawn from members of the executive and judiciary branches with the power to veto “precipitate,” “unjust,” or “unconstitutional” laws passed by the state legislature.18
Separation of powers is not an end in itself. The reason not to combine legislative and executive power, Locke and Montesquieu argued, is that officials could otherwise enact oppressive legislation, serene in the knowledge that it would not be applied to themselves.19 Virtuous government involves distinct tasks: enactment of good laws and faithful interpretation and enforcement of the law. While some division of labor is necessary, so that each task is carefully distinguished and thus conscientiously carried out, the overall enterprise is cooperative in nature, and the separate branches can help each other fulfill their duty. An outsider’s perspective may more easily identify errors and abuses, while the consciousness of external monitoring encourages scrupulous performance of each task. Note that some interbranch independence is necessary for these checks to remain in place. Madisonian checks and balances entail mutual interference between the branches as a necessary precondition for virtuous government.
The second confusion to be avoided is an overly “adversarialist” reading of Madison’s theory of checks and balances. I have in mind the attribution to Madison of the view that, given the right institutional setting, virtuous motivation is not needed to steer political actors to just and wise policies. In the following paragraphs, I first comment on adversarialism and remind readers that it is not Madison’s view, and then argue that implicit in his actual view is a call on citizens and officials to intensify rather than relax their sense of individual moral responsibility.
Adversarialism is the belief that, in certain contexts, the vigorous pursuit of one’s self-interest leads by an “invisible hand” to the common good. While some applications of the theory are true, many are not. Too often, it becomes a license to engage in predatory and exploitive behavior with a clear conscience. Thus encouraged, corporate lobbyists deceive public opinion and obtain legislative favors, politicians mislead voters and rouse or pander to unreasonable passions, citizens demand pork barrel appropriations and low taxes, advertisers manipulate consumers, cartels block competition, businesses resist health and environmental regulations, corporations use scorched-earth legal tactics to protect or increase profits, employers exploit workers, powerful countries bully weak ones, and prosecutors use extortion and deceit to maximize convictions. The adversarialist theory is not the only source of these practices, but it lends them powerful support, loosening the restraints of conscience and distorting our moral compass. Harmful practices are conducted openly, without embarrassment—sometimes indeed with righteous satisfaction, as vice assumes the mantle of virtue.
Invisible hand arguments that convert self-interest or adversarial contest into public good earn our trust when their causal mechanisms are clearly explained, their enabling conditions fully recalled, their claims carefully tested, and their limits duly noted. These requirements are often evaded, however, as we succumb to the counterintuitive charm and flattering convenience of the central idea. A theory that yields important insights when properly circumscribed propagates harmful myths when reduced to a simple form. Background conditions on which the logic depends (for example, free entry and full information in the market context, equality of arms in the legal context, a shared recognition that certain strategies are off-limits) are forgotten, or it is forgotten that their preservation requires other than self-interested motives. When the theory becomes ideology—when it is imposed on rather than tested by experience—pathologies appear. The costs of generalized self-interest go unseen (because they do not fit the theory) or even cease to be regarded as costs. (Social Darwinism is the extreme example of this tendency.) A Panglossian circularity enters our reasoning. The result is that our characters are warped—our ends altered, and habits of self-restraint (on which most valid forms of the theory depend) eroded. Vice parades as virtue, while true virtue is mocked as self-indulgent preening. Responsibility is dissipated, because the “system makes everything turn out all right.”
The adversarialist reading of Madison draws on the famous passage in Federalist 51 arguing that, since men are not angels, a well-designed constitution uses “opposite and rival interests” to supply “the defect of better motives.” “Ambition must be made to counteract ambition,” Madison writes. “The interest of the man must be connected with the constitutional rights of the place.” Offices should be arranged in such a manner that “the private interest of every individual may be a sentinel over the public rights” (Fed. 51, pp. 319–20). We should not misconstrue these remarks, however.
Hume held it “a just political maxim that every man must be supposed a knave.”20 Montesquieu argued that no republic could survive without virtue.21 On this question, Madison sides with Montesquieu. His Federalist essays are saturated with references to virtue. His constant fear is that men of deficient virtue will be chosen for positions of political authority, and this in fact becomes one of his main arguments for an extended republic in Federalist 10. His adherence to Montesquieu is made plain in the conclusion to Federalist 55:
As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so 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 jealousy 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; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. (p. 339)
In the Virginia ratifying convention, he rebuked the adversarialist conceit in the clearest terms:
I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be 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 any virtue in the people, is a chimerical idea.22
These words echo the assertion in the 1776 Virginia Declaration of Rights that “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”