The Promise of Human Rights. Jamie Mayerfeld
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question that should guide the citizen’s political choices is not what do I want?, or what do we want?, but instead, what does justice require? (And to the extent that justice is not at stake, what does the common good, broadly understood, require?) Of course, you may be mistaken about what justice requires. Because your opinion is fallible, you should reexamine it and expose it to the force of other people’s criticisms. A well-designed political system encourages critical reflection on our views regarding justice. It also strives to ensure that the policies actually adopted will be just. Madison’s constitutional theory is a major contribution to the science of designing such institutions. It would be a mistake, however, to say that the outcome of any constitutional process is just by definition. True regard for justice forbids any such complacency. In a proper checks-and-balances system, justice remains an independent standard for evaluating any policies proposed or adopted.
Some people may deny that Madison really articulates a theory of democracy. But why not? It is true that he defends popular government mostly as a means rather than an end, yet he regards it as an indispensable means. His commitment to popular government is firm.
Some may argue that Madison is less than democratic because he believes that laws should be made by the people’s chosen representatives rather than the people themselves; because he expects that (at least in the federal union) elected representatives on average will be superior in virtue and wisdom to the people at large; and because he wants representatives to develop a perspective partly independent from that of their constituents, even though the latter, at periodic intervals, can remove them from office.
Are such views undemocratic? Not according to contemporary usage, for we now take it for granted that in “democracies” laws are made by the people’s representatives, and the idea that the people should choose representatives of better than average character and judgment is viewed as common sense rather than as a rejection of democracy. Yet some argue that contemporary usage has gone astray, that if we recall the original meaning of the word, we should at least acknowledge that the move from direct to representative democracy is a move toward less democracy. My goal has been to show that this view is not obligatory—that, with help from Madison, we can think about democracy in a different way. The inclination to view representative democracy as less democratic is part of a general inclination to view any impediment to the people’s will as a diminution or limitation of democracy. We can shed this assumption if we think that the purpose of popular government is to secure justice. Popular government is necessary, but the reason why it is necessary is the reason why a robust system of checks and balances is also necessary. If our goal as a people is justice, we will insist on holding power and also insist on a system of limits, restraints, separations, divisions, checks, revisions, and vetoes to block unjust policies. We do so because we appreciate both our capacities and our limitations, and recognition of our limitations is one of our capacities. Because this theory firmly commits us to popular government, because it articulates a rationale for constitutional systems that contemporary ordinary (that is, nonacademic) usage considers “democratic,” and because it provides a superior account of political legitimacy, we are permitted to say that it gives us the true meaning of democracy. (I know that some readers will persist in saying that I am making an argument to reject rather than redefine democracy.)
This conception of democracy (inspired by Madison) does not envisage a passive or docile citizenry. The quest for justice is no less demanding or inclusive than the articulation of the people’s will. There is a need for communication, information, criticism, debate, airing of multiple perspectives, reflection, and revision. Difference becomes a resource rather than a complication. A free media and vigorous civil society, supported by a strong educational system, help complete the constitutional order. They train their gaze not only on the political sphere but also on areas of social life where political institutions do not and sometimes should not intrude. What is needed above all is a critical posture toward oneself and others, a moral alertness. Hence the need to institutionalize challenges from those who are differently situated, including minorities, and to stand ready to offer an account of oneself. Madison writes, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob” (Fed. 55, p. 336). Socrates says the same in Plato’s Apology, when explaining why he could not continue to participate in politics without sacrificing his integrity. Like Socrates, Madison fears that in large assemblies group sentiment will replace individual judgment and conscience will fall asleep.38 Responsibility is dissipated in crowds. Though respect for character may be a strong motive in individuals, “In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame.”39
Madison rejects direct democracy because he views it as impractical on anything other than a local scale, where parochialism and group think pose grave dangers to justice, and because he cannot imagine how to supply the necessary checks against majority tyranny. He also thinks that many adults lack qualifications to decide complex policy questions; they are better able to choose suitable lawmakers than to make laws themselves. Though he recognizes the problems of direct democracy, he appears less alert to those of representative democracy. He should have known better than to assume that in a system based on geographic representation, voters would choose lawmakers “whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” (Fed. 10, p. 126). Experience has proven what common sense would predict. When representatives are beholden to geographic constituents, who are not institutionally constrained to justify their preferences to other citizens, parochialism asserts itself with a vengeance and lawmakers are under pressure to flout justice. Direct democracy at least has the advantage that all citizens are present to challenge one another’s demands. One attempt to address this dilemma is the consensus model of democracy, which by stipulating that government policy should secure the widest possible agreement seeks to raise the standard of public justification.40 Some of the devices characteristic of this model (bicameralism, judicial review) are familiar to American citizens, others less so (proportional representation, multiparty systems, coalition cabinets, multiparty appointment of judges). Political scientists debate the merits of the consensus model of democracy, but it deserves our attention as one attempt to remedy the deliberative defects of geographic representation.
Madison’s Cosmopolitan Republicanism
Other commentators have noted the cosmopolitan logic implicit in Madison’s thought.41 By “cosmopolitanism,” I mean support for international institutions that constrain national policy in the interest of justice and the common good. Of course, Madison does not expound the idea; he does not follow his thought to its logical conclusion. This is unsurprising, for international institutions did not exist at the time, and it took the genius of Kant to theorize their possibility.42 (Kant’s “Perpetual Peace” appeared seven years after The Federalist.) Yet Madison’s thought points unmistakably in a cosmopolitan direction.
Madison’s cosmopolitanism springs from three sources: his support for cooperative solutions to otherwise insoluble problems, his commitment to avoiding injustice toward minorities (tyranny of the majority), and his commitment to avoiding injustice toward outsiders.
Madison (writing in 1788) believes that closer political integration of the American states is necessary, because it offers security against foreign danger and against “contentions and wars” among the states, and because it guards states against “violent and oppressive” internal factions and against military establishments poisonous to the foundation of liberty (Fed. 45, pp. 292–93). To object in the name of the sovereignty of the individual states is to make a fetish of particular institutions, no wiser than the old attitude that “the people were made for kings, not kings for the people” (p. 293). “Peace, liberty, and safety” should not be sacrificed so that the governments of the individual states “might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty.” Instead, “the public good, the real welfare of the great body of the people, is the supreme object to be pursued,” and “no form of government whatever has any other value than as it may be fitted for the attainment of this object” (p. 293).
Madison’s views are