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Looking to Madison
Posted by: Bryan Pick on Tuesday, September 18, 2007

One of our commenters, Tito, recently said, "I think the vast majorities of voters actually vote against the other guy far more than they vote for their candidate. Most of the people I talk to who voted for Bush in 04 really voted against Kerry... and the same on the other side. I think it [is] just a matter of which wing-nuts you are more scared of having power."

Incidentally, I was already writing an expansive post starting on that very subject. I recently read, from the Claremont Institute, this review of Our Undemocratic Constitution (read the whole thing for a nice complement to the recent discussion here at QandO of democracy and majoritarianism). In it, Randy E. Barnett argues:
[Our Constitution] is counter-majoritarian by design. Precisely because the founders feared majoritarian fecklessness and abuse, they inserted the veto points to which Levinson objects. Most people today—whether left, right, or libertarian—still fear majoritarian rule. They believe they have more to fear from their political opponents gaining power than they have to gain from putting their friends in office. Indeed, many Americans revere the Constitution precisely because of its counter-majoritarianism—the checks and balances adopted by the founders.
I mostly agree with his assessment, but I don't know if most people consistently connect their fear of The Other Guys™ with a preference for counter-majoritarian government. They seem to remember their fear of majoritarianism when The Other Guys™ are in office, and conveniently forget about it when they win an election. When Your Side™ is filibustering, they're just protecting the minority from the predations of the other 51 percent, but when The Other Guys™ are filibustering, it's unacceptable obstructionism, holding up the regular operation of government and stifling the clear mandate that brought Your Side™ to power.

I'd like for Barnett to be right about it all. I'd like it if Americans had all absorbed the lessons of The Federalist No. 51. James Madison argued then that "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions" and that "[i]t is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure." Madison believed that a properly conceived government could channel those competing interests against each other in an orderly way that would benefit the strong as well as the weak, but I'll return to that later.

Do most Americans really fear majoritarianism, in principle? That hasn't always been true—the Seventeenth Amendment comes to mind*—and those checks and balances that Madison and the other framers put in place have broken down a great deal between then and now. Michael M. Uhlmann illustrates the point nicely with another article in the same publication, "Taming Big Government," which is about the breakdown in the separation of powers during the twentieth century. I suggest you read the whole thing, as there's too much there to excerpt in this one post, but before you do so, read No. 51. Really. After all, it was titled, "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments," so it's pretty relevant; you simply must understand the intentions and the principles that formed the separation of powers to appreciate what has happened and why.

The framers knew, as Uhlmann points out, that "government powers differ not only in degree, but in kind." To properly balance the parts of government against each other, they had to have distinct and rival powers so that the parts would "keep[] each other in their proper places." Madison had warned:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.
If, conversely, they regularly participated directly in each other's affairs, and shared powers, they would have a common interest in growing those powers at the expense of liberty, because rights and powers delineate each other. And that's exactly what Uhlmann argues has happened, and he outlines the path to the resulting, unwieldy and seemingly unlimited "administrative state."

He traces it back to Woodrow Wilson. First, understand: Madison calculated that
... the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
Wilson short-circuited that, because he had a different view of presidential interest. Wilson saw a way to make his ambition and that of Congress compatible. He would sell out the independence of the presidency in exchange for policy-making initiative and prestige. The setup, as Uhlmann sees it:
After flirting with the idea of grafting a parliamentary system onto the American constitutional structure, Wilson made a virtue of necessity by reconceiving the Office of the President. The nation's chief executive would defeat the original Constitution's structural obstacles by, so to speak, rising above them. Wilson's chosen instrument for this purpose was party government, which would breach the parchment barriers dividing president and Congress and unite both through a common policy agenda initiated by the president. The president would make the case for policy innovation directly to the people. Once armed with plebiscitary legitimacy, he might more easily prod an otherwise parochial Congress to address national needs. Madisonian fears about the mischiefs of faction would be overcome by separating politics and administration: Congress and the president would jointly settle upon the desired policy agenda, but its details, both in design and execution, would rely on non-partisan expert administrators' special insight and technical skill, operating under the president's general direction and control.
But, illustrating the iron law of unintended consequences, it didn't go exactly as planned. As the executive bureaucracy expanded in size and complexity beyond any president's ability to control, congressmen found that they could use their influence over administrative agencies and commissions to deliver the goods to favored interest groups and their own constituents. The federal bureaucracy, nominally part of the executive branch, became effectively independent of the president (but not necessarily independent of patron congressional committes) and took on the full range of government power at the same time. For a perfect example, Uhlmann quotes law professor Gary Lawson on the Federal Trade Commission: Show/Hide Isn't that nice? Uhlmann says this "typifies the workings of the system as a whole." Believe it.

With these powerful tools at their disposal, Congress had (and has) every incentive to expand government even to unmanageable size at the expense of the executive's ability to direct it. To an Enlightenment thinker like Madison, this was like clockwork; to a Progressive politician with a glittering vision, it must have looked like bad luck.

The punchline is,
The arguments that once supported the ideas of federalism and limited government have fallen into desuetude: state power today is exercised largely at the national government's sufferance, and if there is a subject or activity now beyond federal reach, one would be hard-pressed to say what it might be. As for the separation of powers, while the branches remain institutionally separate, the lines between legislative, executive, and judicial power have become increasingly blurred. The idea that government power ought to be differentiated according to function has given way to the concept that power is more or less fungible. The dominant understanding of separated powers today [...] is that the branches of government compete with one another for market share.
The incentives are lined up, in the very process of government today, to keep government big and beyond the comprehension of any man or committee, beyond the scope of the common man's imagination or the length of his attention span. If one wants to shrink government today, then, it will take a colossal effort to fight it head-on, attacking each agency or piece of legislation on its own (de)merits. The administrative state must be understood as the Hydra it is. The most critical battle for liberty, besides nurturing a widespread respect for it, is the battle over process, over structure; and undoing "what Wilson wrought" will require an understanding of the logic that produced it. Start by looking to Madison.

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* Another gem of Madison's wisdom in No. 51:
[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.
 
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Do most Americans really fear majoritarianism, in principle? That hasn’t always been true—the Seventeenth Amendment comes to mind*
I believe in the case of the 17th, it is more true to say they feared the perceived ability of business interests to buy Senators, the efficacy of which purchases were enhanced by the "anonymous holds" which have been a part of the Senate since day 1.

Also, part and parcel at the time with Wilson’s embellishment, democracy was thought to be a much better thing than it is...that is true.

But I do think concern over trust bought senators had more to do with it.

Democracy of itself—howsoever Jon Henke wants to endorse the misuse misuse of the word—is majoritarianism. When modified from the pure form, as it is here, you have a republic.

In fact, you have a constitutionally limited democratic republic.
to a Progressive politician with a glittering vision, it must have looked like bad luck.
Yet another time when something uniquely thought Progressive was not progress at all. You’d think that after 100 years they’d—sadly, we’d—figure that to progress beyond 1787, we need to understand and appreciate the works of that year first.

I think we would generally find, on accomplishing that, that most of what needs to be done is to return to the best of that year, and then solely add more restrictions on government, and greater powers to be confirmed to the people, and not the states.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com
I think we would generally find, on accomplishing that, that most of what needs to be done is to return to the best of that year, and then solely add more restrictions on government, and greater powers to be confirmed to the people, and not the states.
I wholeheartedly agree - the problem is those 500+ elected officials and how many 10’s of thousands bureaucrats and lobbyists sitting in DC. They kinda want to keep the status quo, or rather keep things headed in the direction they are already moving in.
 
Written By: meagain
URL: http://
From the review of Levinson’s book:
Levinson is no fan of the electoral college, or of the various choke points in the legislative process, especially the presidential veto. Nor does he care much for the pardon power. He opposes life tenure for unelected federal judges, and is positively indignant about the equal representation in the Senate that the Constitution affords every state regardless of population. He also strongly objects to the fact that incompetent and unpopular presidents get to serve out their terms, rather than being replaced (as in parliamentary systems) by their own party when the leader’s fecklessness becomes apparent and public opinion turns.
In other words, Levinson wants to live in another country. I’m sure if he scans the globe he’ll find one where all these terrible flaws have been corrected. After he lives in the one of his choice for a few years, he can report back on his findings.

More seriously, these complaints are commonplace among the democracy mongers.

The Electoral College is a perennial target, but understanding it is key to understanding the nature of American government: a sovereign union of sovereign states.

Bryan Pick, among other comments:
When Your SideT is filibustering, they’re just protecting the minority from the predations of the other 51 percent, but when The Other GuysT are filibustering, it’s unacceptable obstructionism, holding up the regular operation of government and stifling the clear mandate that brought Your SideT to power.
The filibuster isn’t a Constitutional guarantee. It’s a Senate rule.

from Uhlmann’s article:
power today is exercised largely at the national government’s sufferance, and if there is a subject or activity now beyond federal reach, one would be hard-pressed to say what it might be.
This isn’t really true. The states, despite the predations of the national government, have been resistant to the grasp of the Feds. Yeah, the Congress is always posing for pictures with state and local problems, and trying via the commerce clause and the federal larder and the 14th Amendment to extend itself, but "the states make the law" remains true because they are not subject to enumerated powers and the federal predations turn out to be a two-way street, especially when the states start to imitate the Feds and grow their apparatus into gigantisms. New York State being a fine case in point. California even worse, as far as I can tell. In fact, without the fetters of enumerated powers the states have, and seem to be fulfilling, a potential to be even worse than the Feds, and this is extending down to the level of the state municipalities.

This is often camouflaged by the Fed’s big ticket items — most especially the huge entitlement programs. But that makes the problems with the states even worse, because people pay far less attention to what their states are doing than they do to the Federal government. Counter-intuitively, at least in my immediate experience upstate New York, they pay almost no attention to what the local governments do. For instance, in addition to the New York State government, I contend with four of its lesser municipal entitities: a county government, a town government, a village government, and worst of all, a school board, which exacts the biggest hit in taxes of the four (but all four tax separately).

And I was just commenting to a friend yesterday about the level of policing that goes on here. We have a town police force, there is a separate state police force on the local SUNY campus (full-fledged, sworn, and armed) with overlapping jurisdiction that extends beyond the campus, the regular state police are always out and about and have a barracks just up the highway, and the county sheriff’s department.

Boy, do I feel safe.

All of these local governments and each of these police forces have their own bureaucracies that protect and grow themselves, each with the claim of essential duties that cannot be done without.

Oh, and I forgot this one: Out at the county fair in August I saw an armed police officer who worked for the New York State Department of Environmental Protection. The fair seemed to be his territory, for whatever reason.

So, from where I stand, America is sick with government, and it ain’t just the Feds. This stuff mushrooms out of bureaucracies, and when I say mushrooms, I mean it seems to appear out of nowhere while everyone is attending to the business of making a living, etc. Just paying attention to half of it is like a second full-time job, and the people who get involved in these governments, whether ill- or well-intentioned, cannot conceive of reducing their size or scope.

We are a society sick with government.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
Perkins: "..they feared the perceived ability of business interests to buy Senators,.."

Given the power alloted to government, there was nothing to buy; no privilege’s, no preferences, no monopoly, no special treatment...

What point of reality the Founders missed was in not making the penalties for unconstitutional acts AUTOMATIC; instead, they made government, essentially, it’s own watchdog. Another point they missed (justifiably) was the Hegelian shift (state worship) that the US encountered in the late 1800’s, which threw the whole of the US Constitution into the toilet.
 
Written By: Sharpshooter
URL: http://
Perkins: "..they feared the perceived ability of business interests to buy Senators,.."

Given the power alloted to government, there was nothing to buy; no privilege’s, no preferences, no monopoly, no special treatment...
If you are speaking of the year 1800, you are correct, if you are speaking of the year 1900, you are quite wrong. I spoke of the time most adjacent to its adoption in 1913.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com/
Martin McPhillips-
The filibuster isn’t a Constitutional guarantee. It’s a Senate rule.
Though the Senate is guaranteed the power to make those rules, your statement is true.
It is a clear example of counter-majoritarianism in government, though, and that’s why I included it.

I am interested in your argument that the states (successfully) resist federal power. I agree that state government can be just as bad — I live in California — but federal law is being applied to more people than ever. States are in on the action, but the feds do reach all the way to the bottom of the cookie jar.
But again, I am interested. Convince me.
 
Written By: Bryan Pick
URL: http://www.qando.net
Another point they missed (justifiably) was the Hegelian shift (state worship) that the US encountered in the late 1800’s, which threw the whole of the US Constitution into the toilet.

Otherwise refered to as the American Civil War?
 
Written By: unaha-closp
URL: http://warisforwinning.blogspot.com/
Bryan,

First and foremost it’s structured into the Constitution. The Feds have enumerated (limited) powers, the states do not, so when the Feds want to reach beyond their legitimate sphere, they have to use methods like the commerce clause, and the Rehnquist court began the process of restricting that sort of thing about a decade and a half ago. (I believe that began in earnest with the Lopez case.)

It is a commonplace of law school that "the states make the law." Most criminal law, family law, real estate, trusts and estates, most civil law — all of these areas are largely and significantly beyond the scope of the enumerated powers of the federal government. The states also legislate heavily in some of the same areas as the Feds, often going beyond what the Feds do. Environmental law comes to mind.

The federal government does not really reach to the bottom of the cookie jar. Far from it, in fact. Every state governs itself within its sphere. There is federal intrusion, of course, but in terms of the sheer size of the state sphere, the Fed intrusion isn’t that significant. True, the Feds take the lion’s share of the tax revenue for their big ticket national items, like defense and the huge entitlements, but they don’t take the lion’s share of state government, not even close.

Most of the law that you will see will be state law, inclusive of local law, because municipalities are creatures of the states. Corporations are creatures of the states. Each state has its own commercial codes. The states have far more of the police power than the Feds, precisely because they legislate and adjudicate most of the laws. Each state has a judicial system in which almost all matters will be adjudicated to a finality.

Has there been an attempt by the Feds to encroach on the states’ sphere? Yes, but it is a drop in the bucket compared to what the states can do easily, because they are not subject to enumerated powers. The Constitution only enumerates areas into which the states cannot tread, such as foreign affairs and the regulation of interstate commerce. Otherwise their scope is enormous, whereas the scope of the Feds is, again, limited to the powers enumerated for it.

I’ll give you an example of a good simple dividing line, even though it involves the Presidency, not the Congress. The President has an absolute power to pardon, but only within the Federal system. He has no authority to pardon anyone charged under state law. When the spheres legitimately overlap, the Constitution’s supremacy clause gives the final authority to the Federal government when it is acting properly within its sphere.

If you are arrested, the overwhelming odds are that you are being arrested under the police power of one of the states under the state criminal code. If you are sued, same odds that it’s in a state court under the civil codes of that state. There’s even a whole area of law that deals with interstate jurisdictional questions.

What I am describing is the system of dual sovereignty a/k/a federalism.

So, my whole point here is that the states are monsters in their own right, and that, aside from the tax bite, if you get hit by the beer truck of government, it’s most likely going to be a state beer truck.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
So, my whole point here is that the states are monsters in their own right, and that, aside from the tax bite, if you get hit by the beer truck of government, it’s most likely going to be a state beer truck.
On the first point, I agree, although the tax bite is too important to address just in passing. On the second point — well, your phrasing is priceless, but — I have a few objections.

The state beer truck is often operating within the constraints of federal regulations, because a significant amount of revenue accruing to those state and local bodies comes from the federal government (sometimes indirectly) with strings attached. Enough, anyway, that they comply. I maintain that state laws would be quite different from what they are today if the states didn’t change their regulations to make themselves eligible for federal funds.
First and foremost it’s structured into the Constitution. The Feds have enumerated (limited) powers, the states do not, so when the Feds want to reach beyond their legitimate sphere, they have to use methods like the commerce clause, and the Rehnquist court began the process of restricting that sort of thing about a decade and a half ago. (I believe that began in earnest with the Lopez case.)
... and is being reversed by the likes of Raich. That was what was on my mind when I wrote that they’re reaching to "the bottom of the cookie jar" — something made on your property for personal consumption is subject to regulations on interstate commerce.
It is a commonplace of law school that "the states make the law." Most criminal law, family law, real estate, trusts and estates, most civil law — all of these areas are largely and significantly beyond the scope of the enumerated powers of the federal government. The states also legislate heavily in some of the same areas as the Feds, often going beyond what the Feds do. Environmental law comes to mind.
I haven’t been to law school (yet?), but my observations aren’t far from yours. I just don’t see that the distinction about enumerated powers has stopped the federal government in quite some time. The federal government has responded to incentives to federalize more crimes.

The heart of your argument, if I can reproduce it faithfully, is that the federal government does intrude, but (apart from taxation) their intrusion is insignificant compared to that of the states, thanks to the limits imposed by the U.S. Constitution. I’m not fully convinced to change my position based on the strength of your argument. The feds ignoring or short-circuiting the Constitution is what made the mess I described in my post.
 
Written By: Bryan Pick
URL: http://www.qando.net
Another point they missed (justifiably) was the Hegelian shift (state worship) that the US encountered in the late 1800’s, which threw the whole of the US Constitution into the toilet.


Otherwise referred to as the American Civil War?
Oh please. The Federal government saw 1866 with no more constitutional powers than it had in 1860. It sought no more and was given none.

The Civil war answered several questions, (1) is the federal government an actual government, (2) would the southern oligarchy be allowed to stay the biggest fish in their pond by making their pond smaller, (3) would slavery be forcibly extended into the territories?

It always was an actual government, sovereign over certain areas of law and not others, the South disputed this with no visible means of support for it’s position. Once having joined, a state could only leave by amendment to the constitution to permit it. That was true from day 1.

The southern oligarchy had dominated national politics for decades, and with the rising population and number of free states, it was certain they could no longer maintain a veto over federal actions. There is no constitutional justification for their demanding a veto over federal action, or for insisting Congress permit slavery to be expanded to the territories, neither is there an increase in injustice for the southern slaveholding oligarchy to be replaced by a northern industrial one, and really if I had to have one or the other, I’d pick the industrialists.

The unconstitutional increase of the national government picked up no head of steam Wilson’s administration, five some decades after the Civil War.

The South was morally and legally wrong to rise in rebellion, and it was right and proper that they be crushed as much as was required to end their treason.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com/
I almost always vote "against". I’ve found that when I vote "For", I’m usually deluded as to who I’m actually voting for.
I voted "for" McCain in the 2000 primary in large part because I bought into the persona and didn’t really know him all that well.

The only "for" vote I’m not embarassed about is voting for Ronnie Raygun in 1984.
 
Written By: Veeshir
URL: http://
Bryan Pick writes:
The heart of your argument, if I can reproduce it faithfully, is that the federal government does intrude, but (apart from taxation) their intrusion is insignificant compared to that of the states, thanks to the limits imposed by the U.S. Constitution.
Yes, that is my argument, and I base that on how much state government Americans encounter vs. how much federal government.

(For the record, by the way, I didn’t mean to imply that I went to law school. My wife handled that chore, and I debriefed her throughout.)

As far as taxes go, the huge federal bite camouflages state power. You don’t, for instance, have to get federal approval to put an extension on your house. For that you have to go to the local planning board and the local buildings department. They don’t necessarily charge you for that, but they have the power to deny you a permit or make it way more expensive for you.

You go to the state, not the federal, motor vehicle department. So, your house, your car, your marriage, your divorse, your custody battle: state, state, state. Same with your corporation, your business partnership, your school district.

The Feds, of course, take 12.5% or so off the top from everyone for the Socialist Insecurity and Medicare. Then they get the income tax to pay for all their other big ticket items. So, one can be excused for thinking that they control your life.

When they do interfere in a state and/or local responsibility, the Feds can be utterly ineffectual.

Remember the "drug-free schools" thing? Federal law made it a federal crime to sell drugs within a thousand feet of a school. Well, back when my NYC neighborhood was overwhelmed by drug dealers there was a school sitting right there. In fact there were several schools in the neighborhood. We asked about the thousand foot law and the NYPD said, "Oh, that’s got to be enforced by the ATF." So we called the ATF and said "we hear you enforce this law." You could practically hear them falling on the floor in silent laughter. It was a joke. "Oh, yeah, we’ll get on that...next leap year."

The NYPD, by the way, notoriously laughs in the face of the Feds. The FBI, with maybe a few hundred agents in NYC tried to insist on taking the lead in all counter-terrorism efforts. Ray Kelly, the NYPD commissioner, said "Yeah, sure," and assigned a couple thousand cops to the NYPD intelligence and counter-terrorism units and keeps tight control on their work. His explanation was that after the 9/11 attacks that work couldn’t be left to the control of the incompetent Feds.

On the other hand, the Feds come in handy when it comes to the mob, which has more success, ahem, working with the locals.

In one of his most famous works on government (the title of which I’d be hard-pressed to recall), Samuel P. Huntington argued that any government was better than no government and that more government was better than too little government. Many years latter he argued that a sure sign of a society in decline was "the distribution of advantages to the greatest number of people to the disadvantage of all."

I think there’s a bell curve implied by those two theories and I think that whatever you think of them that we are indisputably heading down the far slope, sick with government. And a "renewal of federalism" isn’t going to put a dent in it. We’ve got about as much federalism as we can handle.

I once described China as a bureaucracy posing as a country, which was a play on the description of it as a civilization posing as a country. Well, the United States isn’t far off from bureaucracies, at all their splendiferous levels, posing as a free society.

"Sir, I note that one of our feeding tubes has come loose from your life, and we regret that we will have to fine you/imprison you/take your property/cut off your benefit/shorten your life/remove your children or, generally make you life impossible. So, will you be running that smart mouth of yours again?"
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
The Feds, of course, take 12.5% or so off the top from everyone for the Socialist Insecurity and Medicare. Then they get the income tax to pay for all their other big ticket items. So, one can be excused for thinking that they control your life.
That’s a big part of it, yes. Another 6 percent or so comes from your employer for SocSec, unless you happen to be an independent contractor (as I have been) and they take it all out of your hide.

Now, your examples of ineffectual federal regulations on state and local behavior do give me some things to think about — I’ve been considering them for the last 24 hours at least — so I’m moving more in your direction. Certainly, you’re much more likely to have to deal with state government than federal on a day-to-day basis. You’re absolutely right, from my experience, that people pay more attention to federal rather than state interference.
But I still think they ought to have separate powers, and if state governments fall short of the U.S. Constitution’s enumerated-powers protections, perhaps that’s more of an argument to impress the same standards upon our states. If it is constitutional restrictions that make the federal government easier to stomach, why shouldn’t we be uneasy when it goes beyond those restrictions to interfere in local affairs?
 
Written By: Bryan Pick
URL: http://www.qando.net

 
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