The Promise of Human Rights. Jamie Mayerfeld
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motivation and understanding are to be expected and planned for, not celebrated or encouraged. The view, widespread in contemporary American political culture, that self-interest legitimately determines the political choices of citizens, candidates, and elected officials is wholly opposed by his theory.
Madison writes in the peroration of Federalist 51: “Justice is the end of government. It is the end of civil society” (p. 322). I take it that this is the attitude proper to citizens and officials, not just those watching from the outside. We should elect representatives “whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice” (Fed. 10, p. 128) and “whose patriotism and love of justice will be least likely to sacrifice [the interest of their country] to temporary or partial considerations” (p. 126). We should reject “Men of factious tempers, of local prejudices, or of sinister designs” who “may by intrigue, by corruption, or by other means first obtain the suffrages and then betray the interests of the people” (p. 126). In Federalist 57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust” (p. 343).
When Madison writes, “No man is allowed to be judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity” (Fed. 10, p. 124), he implies that the attitude appropriate to elected officials and the citizens who choose them is that of an impartial judge, seeking only to attain a just outcome as determined by the rights of all parties: “what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens?” The task of Federalist 10 is to devise a system that selects political officials genuinely motivated by justice and that minimizes their temptations to deviate from justice.
Let us note that Madison’s preoccupation with justice is by no means limited to the rights of property. The man who wrote the “Memorial and Remonstrance Against Religious Assessments,” drafted the Bill of Rights, and sought to mobilize state resistance against the Alien and Sedition Acts is animated by a far broader conception of human dignity. In the ringing defense of unalienable rights that concludes the 1785 Memorial (a passage Lance Banning calls the most explicit statement of “the consistent core of fundamental principle that guided him through all the turns of his career”),23 Madison invokes freedom of the press and trial by jury but not property. Property may receive the emphasis Madison gives it in Federalist 10 because recent economic conflicts raised its salience in readers’ minds. Even in the warning against majority tyranny that concludes Federalist 10, however, fear of religious persecution is mentioned before fear of paper money (p. 128). Madison does not favor unlimited accumulation of wealth, and he retains the traditional republican fear of sharp economic divisions. In 1792 he argued that the spirit of party faction should be combated by (among other means) opposition to “an immoderate, and especially an unmerited, accumulation of riches” and “by the silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort.”24 We should take Madison at his word when he claims his primary allegiance is to justice.
If his conception of justice is in some respect mistaken, we should correct it, as he himself would desire. He would hardly claim immunity from the forces that distort opinions about justice. (Madison’s compromises with slavery—he did not free his own slaves, sold some of them to another master, and although professing opposition to slavery argued that the solution lay in the removal of freed blacks to Africa—are a reminder that he was all too fallible.)25 In his preoccupation with human fallibility and his belief that a well-designed political system rescues collective deliberation from the worst effects of interest and passion, we see a hint that our understanding of justice can improve over time. Madison suggests that constitutional democracy is conducive to moral progress. I find his political philosophy hard to reconcile with theories of constitutional interpretation that wed us to understandings of moral and political concepts prevalent at the time of ratification.26 As Justice Kennedy writes of those who drafted the Due Process Clause in the Fifth and Fourteenth Amendments, they did not presume to know “the components of liberty in its manifold possibilities,” for “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”27
The sources of human fallibility are complex. Our political judgment is warped by self-interest, ambition, pride, opinion, religious zeal, and personal loyalties.28 These give rise to factional allegiances so intense that we often prefer to harm our adversaries rather than seek mutual advantage (Fed. 10, p. 124). It is not enough to be motivated by justice. We may be taken in by the noble rhetoric of cynical leaders.29 More important, our opinions about justice are distorted by self-interest and pride: “As long as the connection subsists between [man’s] reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves” (pp. 123–24). In addition, the intrinsic difficulty of political questions (emphasized in Fed. 37) renders inevitable the emergence of deep-seated disagreement, which self-interest and pride easily fan into mutual animosity and distrust.30
Avowed self-interest is not the main issue. Rather, self-interest is one of several motives that distort our judgment. The antisocial motives are often disguised as demands for justice. This is a problem—the antisocial motives are harder to unmask—but also an opportunity—we find ourselves arguing about justice, and thus potentially in a position to be influenced by reason.
We should strive ever harder to comply with justice. We are not angels, however, and humility requires acknowledgment of our imperfection. Virtue is proven by our acceptance of checks that raise the standard of our deliberations.
Why does Madison say that “ambition must be made to counteract ambition” and that “the private interest of every individual may be a sentinel over the public rights”? (Fed. 51, pp. 319, 320). I propose the following account. Under a well-designed constitution, officials chosen for their virtue and wisdom are pledged to uphold the constitution, defend justice, and seek the common good. Seeking a reputation for public probity and effectiveness, they have reasons of pride and political ambition as well as duty to honor their commitment. Scrutiny by an informed electorate and by the independent branches raises the level of performance needed to maintain a favorable reputation. It is to be expected, moreover, that officials will form some identification with their own department. Conscious of its contributions to the public order, and eager to demonstrate their personal abilities, they will have self-interested as well as principled reasons to resist improper encroachment on their constitutional responsibilities. Ambition thus sharpens their perception of their rivals’ misdeeds. But any claims made against the other branches must be presented on impersonal legal and moral grounds. Conscientious officials will internalize this requirement, impartially evaluating the counterclaims of the rival branches, and asking themselves whether their own arguments are truly sound. Ambition and interest contain a moral element: we can take pride in satisfying high moral standards, while interest makes us sensitive to injustices that others inflict on us. Madisonian checks and balances harness the moral side of interest and ambition as one strategy among others to heighten our sense of moral responsibility. Madison’s view is the opposite of the adversarialist position with which it is often confused.
Constitutional theory has become a haven for two fallacies—the adversarialist conceit that a well-designed system reliably directs self-interest to the public good, and the related institutionalist conceit that a well-designed system will yield good results without the determined efforts of the parties. Madison emphatically rejects both: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” If the people be not virtuous, “No theoretical checks—no form of government can render us secure.”31 The Constitution is not a “machine that would go of itself.”32 It is not