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For over two centuries the United States Constitution has withstood the test of time even though it has contained a ticking time bomb whose explosion could topple our system of representative government. That time bomb is contained in the seemingly innocent language of Article I: Section Five:
Each House may determine the Rules of its Proceedings.
That innocent sentence gave rise to what is now known as the the 60 vote rule in the United States Senate which essentially allows any party or faction to hamstring the legislative process by requiring a super-majority to pass legislation. The most notable policy development of the opening months of the Obama Administration has not been the stimulus bill or other measures designed to pull us out of the Bush economic tailspin, but the realization that the Republican minority has adopted a policy of bottling up legislation so that in order to accomplish anything the new Administration must be able to muster the sixty votes needed to close off the threat of a filibuster.
Background
What is amazing about this crisis is not that it is happening, but that it has taken so long to develop. The threat has always existed and has been evoked on various occasions, but usually only to head off a particular piece of legislation rather than to block all major efforts. The closest precedent is the famous Clinton-Gingrich face-down of 1995 which shut down the federal government.
But until this year, no Party has sought to make the sixty vote rule binding on all major legislation. Forget the bald-faced hypocrisy of the Party whose President racked up the largest deficits in history suddenly doing an about face that demands more spending cuts to lower their own deficit, what is at stake here is more than a mere difference in economic philosophies or even political hatred (Gingrich dug himself a deep hole when he remarked that he shut down the government because Bill Clinton made him ride in the back of Air Force One), but what may be the most important constitutional issue of our lifetimes.
The two parties have been moving towards this crisis for some time, as both sides have upped the ante for Supreme Court and judicial appointments to issues such as approving the budget. Dating back to Gingrich the GOP has followed a take-no-prisoners mentality that essentially says it’s our way or no way. In his autobiography Bill Clinton writes that Republican Dick Armey told him:
That if I didn’t give in to them, they would shut the government down and my presidency would be over. (p. 673)
Now-disgraced House Speaker Tom DeLay, who embraced the nickname “the Hammer” for his hardball tactics, defiantly titled his autobiography, No Defeat, No Surrender.
The Framers
When the framers of the Constitution met in Philadelphia the issue of majority-minority rights occupied a large part of their time. Various factions of the young republic feared that because they were minorities that their interests would be over-ridden. The famous big states-little states and North-South disputes represented manifestations of this fear.
This issue produced what arguably is the most important American political treatise ever written, James Madison’s Federalist Ten. A small, somewhat diffident man with what is those days was termed a “delicate constitution,” Madison was–and still is–often dwarfed by his taller fellow Virginian Thomas Jefferson. But no one doubted the intellect or dedication of this man who burned the midnight oil so that he could graduate from what is now Princeton University in two years. Madison’s notes on the deliberations over the Constitution today remain our single most important historical source about what the framers intended and for this have become a de facto part of Constitutional law.
But it is in Federalist Ten that James Madison distilled those notes into arguably what is the single piece of required political writing for every American citizen. When the then anonymous authors of the Federalist Papers–Madison, Alexander Hamilton and John Jay–penned their series of arguments designed to sway the states into ratification, the job naturally fell to Madison to take on the one issue that had threatened to send the convention delegates home–the question of faction.
So as the Republican Party threatens to remake the Constitution, it is more important than ever that we understand this new development is light of Madison’s thoughts. Did the framers purposely intend to turn “minority rights” into “super majority rules” or are the developments of the past few months not something they intended but something they feared? The answer lies in the essay published in the New York press under the pseudonym Publius (loosely translated from the Latin as “public”)–Federalist Ten.
The Opening
Perhaps one of Madison’s greatest strengths lay in his grasp of language, for of all the framers his wording is the most direct, the least archaic and the least full of the flourishes that characterized much of the political discourse of the times. Federalist Ten has earned its status not merely because of its ideas, but because of the masterful way in which they are expressed. It is not merely a great philosophical work, but a great literary one as well. Its brevity–a mere eight pages in my well-worn paperback edition–testifies to Madison’s skill.
Madison’s opening sentences remain a model of getting straight to the point:
AMONG the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice.
Note particularly the words “dangerous vice.” For Madison’s time these were fighting words, for harboring a dangerous vice was one of the worst epithets you could use to tar a rival, a group or an idea. The use of such language in the second sentence is intended to grab the reader by the collar all but forcing them to read the rest of the essay.
The other brilliant tactic in Madison’s opening comes several sentences later when he lays out the case for the opposition in as strong and straight-forward a language as possible.
Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.
So there we have it. Is the GOP’s tactic of requiring a supermajority a “dangerous vice” or does it represent the just attempts by a minority to avoid being trampled by an “overbearing majority?” The fate of the Obama Administration and the future of American constitutional government depends on how we answer this question just as did the fate of the Constitution itself when Madison wrote Federalist Ten.
Looming in the background–and the very reason for writing the Federalist Papers–was the requirement that nine of the thirteen states had to approve it. So Madison’s essay has a double meaning: it is not merely about the Constitution itself but about the rules for its ratification. By agreeing to the nine state provision Madison and others had already given their assent to the principle that certain issues required the approval of more than a mere majority. The question Madison had to deal with in Federalist Ten was how far did this principle extend?
Cures for Faction
Madison outlines two broad cures for the disease of factionalism, methods which are the very foundation of dealing with any ailment: remove the cause or control its effects. Under the first, Madison mentions the obviously unacceptable method of curtailing liberty. This is followed by one of the most famous quotes in the Federalist Papers:
Liberty is to faction what air is to fire, an aliment without which it instantly expires.
To cure the ailment of faction by abolishing liberty, says Madison, would be akin to trying to put out a fire by depriving the air of oxygen. The fire would die, but so would everything else.
Madison takes a bit more time to dispose of the second method of controlling the cause of faction which is to curtail the number of opinions circulating in a democracy. Again the man acknowledged as the father of the Bill of Rights masterfully disposes of this argument, which has had it adherents throughout our history (i.e. Joe McCarthy):
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.
Madison’s diagnosis of how these opinions arise is itself noteworthy, especially given current circumstances.
But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.
He would follow this with several other sentences to reinforce the point in case anyone missed it.
Those who are creditors, and those who are debtors, fall under a like discrimination.
The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government
Class Warfare
That is perhaps the most succinct description one could find of the reason for the current disputes between Democrats and Republicans. The Republicans were willing to let George W. Bush run up the largest deficits in American history when they involved tax cuts for the wealthy, but now that Barack Obama has proposed cutting back those tax cuts and giving the tax cuts and benefits to the lower and middle classes suddenly deficits are no longer a good thing for orthodox Republicans.
As Madison so brilliantly saw, for the entire history of the republic the charge of “class warfare” has been a rallying cry for various factions. On the one hand, the rich have defended their wealth as the just fruits of their labor. This was the argument the man Newt Gingrich made an honorable member of the Republican caucus–Rush Limbaugh–forcefully articulated for conservatives over the weekend.
Limbaugh aside, class warfare was a great fear among the framers, most of whom were wealthy men–including Madison, who was one of the largest landowners in Virginia. Occurring almost simultaneously with the debate over the ratification were the beginnings of the French Revolution. July 14, 1789 is, of course, the date of the storming of the Bastille. North Carolina had voted against ratification the previous August and would not change its vote until the fall of 1789. Rhode Island would not vote “yes” until May of 1790.
In his defense of the new Constitution Madison’s prescience about the future conflicts of this nation is nothing short of remarkable.
The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pocket.
Madison rightly ascertains that it is impossible for anyone to remain impartial about a dispute in which their own livelihoods are at stake. Following a long rhetorical tradition he purposely paints himself into a corner, to better demonstrate that the Constitution’s solutions are the only answer.
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good.
Even the most determined opponent of the Constitution was now at the mercy of Madison’s assertion that the only way to deal with faction is not to deal with its causes but to curtail its effects. Long before Karl Marx, Madison was saying that class warfare was inevitable, but unlike Marx–or the soon-to-be defenders of the excesses of the French Revolution–Madison did not believe class warfare would inevitably lead to violence.
This sometimes neglected faith on Madison’s part is the central gamble of the American experiment, for, as Madison recognized, it created a form of government whose main task was to allow the passions behind class warfare to play out in a nonviolent, democratic way. This is why Federalist Ten remains such a seminal document. It rolls the dice on the biggest political gamble of all–could this country do something few governments had managed to do in all of human history by controlling the animosities between classes?
To restate the question in terms of our contemporary controversy: is the Republican defense of the upper classes (for stripped of all its rhetoric that is what lies at its heart) stepping over the line, tearing apart the fragile structure that Madison and the other framers had erected? Is the American experiment a failure? Has it finally run aground on exactly the shoals that Madison had mapped out in Federalist Ten?
Curtailing the Effects of Class Warfare
In outlining how to curtail class warfare Madison shifts into a classic political discussion of the virtues of a democracy versus a republic. As might be expected, Madison dismisses the idea of a pure democracy as unworkable. Yet at the time there were those in the young nation whose prejudices lay in that direction, so while today we may readily agree with Madison, in his own time the virtues of a republic were largely theoretical and untested in America.
This argument also figures in the current dispute between Democrats and Republicans for one of the loudest arguments against the Republican tactics is that they thwart the will of the majority. Barack Obama won the election and the GOP needs to recognize that and get over it.
Madison’s dismissal of this argument is still relevant today, for he outlines the very real fear that a democracy gives unbridled liberty to any majority to have its will with the rest of us. He does this in one masterful sentence that certainly captured the passions of his times, but in these times rings just as true.
A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.
This is a perfect statement of the Republican case against the Obama Administration for they feel that just because Obama won the election and the Democrats control Congress that that does not give them the right to “sacrifice the weaker party.”
In Federalist Ten Madison places his faith in what he terms “a scheme of representation” which provides the only cure for faction, especially the prospect of what some term the “tyranny of the majority.” It is at this point that Madison and his fellow framers made their gamble. They believed that the electoral system as contained in the Constitution would act as a strong check on the evils of faction.
Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.
Madison then pulls off one of the more audacious “on the other hand” rhetorical maneuvers in political philosophy admitting:
Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.
The Impact of Size
Following this sentence comes the most crucial transition in Federalist Ten, where Madison proposes that the key to curtailing this tendency lies in the size of the Republic. The transition is not merely rhetorical or philosophical; it is also cultural.
Madison had already revealed some of those cultural prejudices in his argument favoring electoral democracy. Like most of the framers, Madison was skeptical about the ability of what William Jennings Bryan termed “the common people” to govern themselves. They required what he termed “enlightened representation,” in short electing people like him. Curiously, a germ of this argument persists today in Republican attempts to curtail the franchise. While their rhetoric speaks of a desire to prevent “fraud,” their actions have fallen most harshly on the poor, people of color, the elderly.
If skepticism about “the common people” was common among many of the framers, the issue of state versus federal power was the source of much of the factionalism of Madison’s time. Madison’s argument against a confederation is succinct:
Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
In the second-to-last paragraph, Madison reiterates his point:
A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
What Madison Did Not Anticipate
This argument is a child of the largely rural, isolated communities of eighteenth century America in which Madison and the other framers were raised. In such a world the communication and organization it would take to boil into a noxious faction was largely a function of geography and technology. In a sense Madison’s gamble and that of his fellow framers rests on that world.
But as we know that world long ago disappeared, supplanted by two developments that make Madison’s arguments problematical. The first is, of course, mass communications which as we know can swiftly inflame a country and create factions in the time it takes to punch the remote control. A year ago the nation was embroiled over a controversy over the ties between Barack Obama and his then minister the Reverend Jeremiah Wright. With Obama in the White House after an election that turned out to be not as close as anyone would have predicted a year ago, that controversy has already faded from memory. Yet it stands as a classic example of the power of mass communications that Madison and his colleagues could not have foreseen.
The second development lies in the organizational sphere. The use of sophisticated demographic analysis has enabled proponents of any cause to identify potential members of a faction no matter where they live right down to the city block. Currently the most sophisticated uses of this technology are affordable only by a few which has created an unlevel playing field. Personal computers and a wider and more open distribution of databases may erase this inequity some time in the future, but right now those with money are better able to rally their forces than the rest of us.
This inequity is compounded by the cost of organizing those factions which depends on a combination of compelling messaging and instantaneous communication. Barack Obama’s victory is largely attributable to this organization, but the larger question is whether the organization he put together for winning an election can also become a vehicle for governing.
Obama’s Organization and Federalist Ten
The November election repudiated the Republicans and their top-down philosophy, yet they behave as if they represent the majority. Had they a Madison in their midst they might plead a good case for “tyranny of the majority,” but instead they have to settle for the likes of Rush Limbaugh who borrows a page from Richard Nixon and before him Joe McCarthy in maintaining that the GOP represents the majority. This is what gives them the right to bottle up legislation.
Barry Goldwater wisely articulated a more Madisonian defense of conservatism, but blessed with an advantage in money and resources this generation’s GOP advances the indefensible notion they are the true representatives of the American people. Ironically in doing this they have made a modern anti-Madisonian gamble, for they are betting the future of their Party and the country on the conviction that their faction is right and that right gives them excuse to bring the government to its knees.
I believe the real meaning of this last election was that after two decades the Democrats on a national level have finally overcome the Republicans’ huge advantage in funds and organization. The Democrats finally mastered the art of what Clinton advisor Mark Penn termed microtargeting. They learned from Howard Dean that the Internet could become a powerful organizational tool.
What this suggests is that were Madison alive today he might assert that where once geography and primitive communications helped to protect our republic from faction today our hopes lie in technology. So where the GOP is gambling that it really is the “silent majority,” the Democrats are gambling that they can overcome the technology gap and rally their own troops. The next 18 months will tell whose gamble succeeds.
Let us assume for purposes of argument that the Obama Administration can use the technologies that helped win the White House to solidify its presence there. That will take us right back to Federalist Ten, which presupposed a competition in what Justice Douglas termed “the marketplace of ideas.” We are back to the class warfare Madison described.
This is where Federalist Ten has proven even more remarkably prescient, for history has proven Madison’s faith in an electoral republic. Each time the American experiment has threatened to run aground on the shoals of class warfare, new ideas have emerged, captured the public imagination and produced what can only be described as watershed changes in political, economic and social policy. So in the last century we had Woodrow Wilson and Franklin Roosevelt.
I am going to venture way out on a limb here and argue that Federalist Ten helps us to understand the current impasse as a contest between two shopworn factions. Unlike Wilson and Roosevelt, neither Party has offered anything new, so passions have not become inflamed because the ideas are stale. Stale ideas produce stalemate.
Federalist Ten and the Sixty Vote Rule
So what does Federalist Ten have to tell us about the sixty vote rule? This provision is nowhere enshrined in our Constitution. It is part of the rules of the Senate, which are referred to only obliquely in the Constitution by the statement that each legislative body may enact its own rules. The Supreme Court affirmed this in the 1892 case United States v. Ballin. Obviously no Supreme Court would dare venture into proscribing those rules, so over the years the Senate has seen a variety of changes and tactics designed to deal with the sixty vote rule.
Curiously, the most recent came from the Republicans during the Bush Administration when the GOP threatened to evoke the so-called nuclear option to prevent the Democrats from holding up judicial appointments. Fortunately a compromise prevailed and the option was never evoked, although it has been in the past for certain bills. Involving a series of parliamentary maneuvers, the nuclear option essentially turns the cloture vote which requires the sixty votes into a majority vote over procedure.
For the Democrats, the nuclear option still remains a card they hold, but it is doubtful they could play that card too many times, if at all, for to do so would move the GOP to rightfully complain about “tyranny of the majority.” So at the present we find ourselves at an impasse that threatens the very foundations Madison and the other founders had so carefully erected. Neither alternative is preferable: evoke the nuclear option and essentially turn our Republic into a pure democracy or continue to allow a minority to thwart major legislation. On the other hand, as we have already seen, he would not favor widespread use of the nuclear option for that would bring us closer to pure majority rule.
The usual cure for such a stand-off is an election, which some have argued helped to curtail the Gingrich shutdown since Republican Bob Dole rightly feared that the impasse could cost him the Presidency. When Bill Clinton and the Democrats framed their campaign as much against Gingrich as Dole, it proved Dole’s fears were right. It also proved at least in that case that Madison was right about the ability of an electoral republic to curtail the excesses of faction.
Periodically those with leanings toward a parliamentary-style democracy tout the superiority of their own system in which votes of no-confidence in the current administration trigger new elections. Yet Madison would probably be the first to point out that parliamentary democracies do not curb the evils of faction. In fact the historical record seems to be that they nurture it.
The language used in Federalist Ten makes it clear James Madison detested faction. Besides referring to it as the aforementioned “dangerous vice,” in one passage he performs the eighteenth century equivalent of calling it every evil in the book:
A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.
The final words of this paragraph sound like an indictment of the Gingrich-style politics that has characterized the Republican Party, so I seriously doubt that Madison would support the GOP’s attempts to change our government into one requiring a supermajority to pass any meaningful legislation.
In the end James Madison would fall back on the very ideas he invoked in Federalist Ten, asking us to have faith in the republic we have created and its institutions. If you are someone outraged at the current GOP tactics that may seem cold comfort, maybe even a copout. But the real question is are we willing to continue to bet on the gamble Madison made or put something else in its place.
That means it is incumbent on all of us who truly believe in Federalist Ten to publicize the dangers of the Republicans’ approach. This means putting some backbone into Vichy Democrats like Nancy Pelosi who willingly collaborated with the Bush Administration. It means writing letters to the editor and calling in to local and national talk shows. It means talking to your friends, neighbors and coworkers. It means using the Internet and other mass communications to spread the word.
It also means that ending the current stalemate will require new ideas, not more of the same-old, same-old. The Republican conservative gathering last weekend all but admitted that on its part the GOP hungers for a new approach. As for the Democrats, thus far much of what they have laid out appears to be a combination of warmed over New Dealism combined with Lyndon Johnson’s Great Society and a dash of Bill Clinton’s New Democrats.
If Barack Obama is to hold on to those Americans he energized with his organizational technology he will need to better articulate a new foundation for the future. In the spirit of James Madison and Federalist Ten, this month’s issue is dedicated to opening a dialogue about ideas.
On thing Federalist Ten evidences is that James Madison was an extremely shrewd analyst of human nature. Factionalism, he recognized, inflames human passions. This early in the game, passions are still not inflamed, but if the Republicans continue their tactics expect that those passions will flare up. As Newt Gingrich learned to the detriment of his Presidential career, when you play with fire be prepared to get burned.
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