The Promise of Human Rights. Jamie Mayerfeld
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are imperiled by global climate change, weapons of mass destruction, and financial interdependence. Our response must take the form of close international cooperation, with institutional mechanisms to ensure that countries honor their commitments. We now have many generations’ worth of experience with international institutions and understand that their benefits could not have been secured by other means. If thicker international institutions are the rational solution to looming disaster, emotional attachment to strong state sovereignty must not bar the way.
Madison has no patience for institutional inertia. The spirit of innovation, informed by reason and experience, is famously celebrated in Federalist 14. “Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.” The glory of the people of America is “that, whilst they have paid a decent regard to the opinions of former times, and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience” (Fed. 14, p. 144). In Federalist 49 Madison warns against frequent invitations to constitutional transformation, as destabilizing, dangerous, and unnecessary. This does not contradict the clear implication of Federalist 14 that revisions should be undertaken when circumstances require.
It may be objected that Madison’s argument depends on a sense of national belonging, which gives us reason to support national integration but to resist the cosmopolitan project. It is true that in Federalist 14 (from which I have just quoted) and Federalist 45 appeals are made to a shared American identity. Madison writes that “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union and excite horror at the idea of their becoming aliens, rivals, enemies” (Fed. 14, p. 144; see also Fed. 45, p. 293). But we do not have to choose: cosmopolitanism, as I use the term, does not imply the disappearance of the nation-state. It envisages international institutions that constrain national policy for the sake of justice and the common good. In fact, as I argue in my next chapter, some cosmopolitan goals may prove unattainable without the preservation of the nation-state.
We should also recall the purpose of Madison’s remarks. Responding to those who think a federal union is impractical, he argues that a sense of national identity (recently reinforced by the shared sacrifice of the War of Independence) is sufficient to guarantee the enterprise. He does not claim it is necessary. It is worth noting that appeals to national belonging take up very little space in his Federalist essays. His case for the federal union rests on justice and the need to solve shared problems. Nowhere does he say these reasons are insufficient to motivate action, and the view should not be imputed to him. Unlike Hamilton, moreover, he is not guided by a desire for national self-assertion.
The second source of Madison’s cosmopolitanism is his fear of majority tyranny. The perennial threat to justice is faction, defined as any majority or minority group “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community” (Fed. 10, p. 123). Republican government solves the problem of minority faction but not that of majority faction. Madison’s famous solution to the latter involves the geographic redistribution of decision-making authority. His epiphany is that majority faction is disarmed in large republics, because factional interests and passions are less likely to command a majority, and, if they do, coordinated action is more difficult (p. 127). Where force of numbers no longer avails, rational persuasion must be tried instead. “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (Fed.51, p. 322). In a large and heterogeneous republic, there are enough parties with critical distance from sectional disputes to constitute an impartial judge. Let us call this the sociological argument.
Madison’s pessimism about small republics can be severe. Rhode Island is doomed to majority tyranny or dictatorial usurpation unless it joins a federation (Fed. 51, p. 322). It must choose between complete independence (strong sovereignty) and republican government; it cannot have both. Without the federal union, we lack a “disinterested and dispassionate umpire in disputes between different passions and interests in the state.”43 Not only does the extended republic create the possibility of an impartial judge, but the Constitution, recognizing the fragility of republican institutions at the state level, provides formal guarantees. Under Article IV, “the United States shall guarantee to every State in this Union a Republican form of Government,” while under Article I, Section 10, no state shall “pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Although these rights are promised in most state constitutions, “Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted” (Fed. 44, pp. 287–88). Chief Justice John Marshall called Article I, Section 10 “a bill of rights for the people of each state.”44 The Constitution is, among other things, an early human rights treaty.
The importance of the sociological argument cannot be overstated. Critics of Madison’s checks and balances model have faulted him for not anticipating the rapid emergence of party politics—which, ironically, he took a lead in creating not long after The Federalist appeared. But I think Madison in The Federalist is aware of the danger. His very awareness that no system of checks and balances is foolproof causes him to make his last stand with the sociological argument. On it depends the success of his project. Hence his fear that constitutional checks and balances are insufficient to prevent majority tyranny in the unfederated states; his belief that territorial enlargement is the main reason why faction becomes less dangerous in republican than in democratic government;45 and his decision to conclude Federalist 51, the locus classicus of his institutional checks and balances argument, with a recapitulation of Federalist 10.
The sociology of Federalist 10 must be updated, however. Let us admire The Federalist without pretending that time stopped in 1788. Madison himself predicts the growing homogenization of the United States: “increased intercourse among [citizens] of different States … will contribute to a general assimilation of their manners and laws” (Fed. 53, p. 329). This admission, damaging to the argument that the diversity of an enlarged republic will allow rational discourse to replace factional dominance, should have set alarm bells ringing in his head. Of course, the succeeding centuries have effected deeper transformations than he could ever imagine. Today, mass parties, instant communications, modern broadcast technology, and the concentration of enormous economic and media power in a few hands allow political mobilization to quickly outrun rational discourse, and they make it all too easy for majority and minority factions to seize control of the policy process. In addition, the national security state has concentrated vast unchecked powers in the executive branch. In such an environment, individual rights, justice, and the common good are easily overwhelmed.
The conditions that in Madison’s time threatened justice in direct democracies and small republics are today reproduced and exacerbated at the national level. To ignore this problem is to risk the fate of Rhode Island. Federalist 10 teaches us to seek help from the outside. In our own time, Madisonian constitutionalism calls for international oversight of national policy—in other words, the creation of a strong international human rights regime. Under such a regime, national policy is monitored by those with both the institutional and psychological independence, the means and the motive, to act as an impartial judge. International monitoring not only offers an additional check against injustice, but provides needed reinforcement for domestic checks and balances.46 Of course, the monitors must be guided by a genuine commitment to human rights, and the regime must incorporate mechanisms of mutual accountability to prevent corruption and political manipulation.
I argue in the next chapter that the transnational human rights regime developed in Europe over the last seventy years offers a model of how such a regime might be